Swan Valley Planning Act 2020 (Western Australia)

Mechanically, the Swan Valley Planning Act 2020 creates a bespoke, standalone planning regime that replaces the operation of existing region and local planning schemes for land in the Swan Valley, and establishes bodies and processes to make and administer that bespoke scheme. The Act requires the Western Australian Planning Commission (the Commission) to prepare and the Minister to approve a Swan Valley Planning Scheme (s 7). On the day the first Swan Valley Planning Scheme comes into operation (the scheme start day), each Metropolitan Region Scheme, local planning scheme and any improvement scheme ceases to apply to land in the Swan Valley and the Swan Valley Planning Scheme becomes the planning instrument that applies to that land and to new development (s 9(2)). The Act gives the Swan Valley Planning Scheme legislative effect and treats it as subsidiary legislation made under this Act (s 8(1)-(2)); it also expressly removes the operation of one provision of the Interpretation Act 1984 in relation to the scheme (s 8(3)).

The Act sets mandatory content and structural requirements for the scheme. The scheme must be consistent with the objects of the Act (s 10(1)); must divide the Swan Valley into planning areas, include planning objectives for the whole valley and each planning area, and either prohibit subdivision of land in those planning areas or prescribe minimum lot sizes for subdivision (s 12). The scheme must also include provisions to ensure that new non‑rural development of Swan Valley rural land is designed and located to minimise nuisance or detrimental impacts from horticulture and viticulture (s 13). The scheme may incorporate provisions of other planning instruments, including a planning code, the Metropolitan Region Scheme, model provisions and deemed provisions, with modifications recorded in the scheme (s 11).

CrestWestern Australia

Swan Valley Planning Act 2020

Western Australia

Swan Valley Planning Act 2020

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 3
Swan Valley 5
Objects of Act 5
Act binds Crown 7

Part 2 — Swan Valley Planning Scheme

Division 1 — Nature and effect of scheme

Swan Valley Planning Scheme 8
Scheme has legislative effect 8
Effect of scheme for Planning and Development Act 2005 8

Division 2 — Contents of scheme

Contents of scheme 9
Scheme may incorporate provisions of other planning instruments 10
Planning areas and provisions about subdivision and minimum lot sizes 10
Provisions to ensure non‑rural development designed to minimise impacts from rural land uses 11

Division 3 — Making and amending scheme

Subdivision 1 — Preliminary

Term used: proposed scheme or amendment 12
First proposed scheme 12
Replacement or amendment of scheme 12

Subdivision 2 — Processes to be followed in preparing proposed scheme or amendment

Matters to which Commission must have regard 13
Consultation requirements 13
Referral to Heritage Council 14
Referral to EPA 14
Environmental review to be undertaken if required by EPA 15
Environmental review to be undertaken by land owner in some circumstances 17

Subdivision 3 — Advertising proposed scheme or amendment

Advertising proposed scheme or amendment 17
Commission’s duties if proposed scheme or amendment to be assessed under Environmental Protection Act 1986 18

Subdivision 4 — Approving and publicising scheme or amendment

Approval of proposed scheme or amendment 18
Approval of scheme or amendment referred to EPA 19
Publication, advertisement and commencement of approved scheme or amendment 20

Part 3 — Swan Valley Strategic Leadership Group

Swan Valley Strategic Leadership Group established 22
Functions of Swan Valley Strategic Leadership Group 22
Remuneration 23
Use of staff and facilities of public authorities 24
Regulations about Swan Valley Strategic Leadership Group 24

Part 4 — Swan Valley Statutory Planning Committee

Swan Valley Statutory Planning Committee established 25
Functions of Swan Valley Statutory Planning Committee 26
Subdelegation of functions by Swan Valley Statutory Planning Committee 27
General provisions about delegation under s. 34 and 35 27

Part 5 — Miscellaneous

Delegation by Minister 29
Protection from liability 29
Certain references in written laws to include Swan Valley Planning Scheme or things done under scheme 30
Application of regulations under Planning and Development Act 2005 30
Regulations 31
Review of Act 32

Part 6 — Transitional provisions

Terms used 34
Process for making first Swan Valley Planning Scheme 34
Application of Interpretation Act 1984 35
Existing lawful or approved development 35
Applications for approval not finalised on scheme start day 36
State Administrative Tribunal review not finalised on scheme start day 36
Transitional regulations 37

Part 7 — Repeals

Swan Valley Planning Act 1995 repealed 39
Swan Valley Planning Regulations 1995 repealed 39

Part 8 — Amendments to this Act commencing on later of proclamation and commencement of Planning and Development Amendment Act 2020 provisions

Act amended 40
Section 3 amended 40
Section 11 amended 40
Section 20 amended 40

Part 9 — Planning and Development Act 2005 amended

Act amended 41
Section 4 amended 41
Section 13 amended 42
Section 14 amended 42
Section 19 amended 43
Section 20 amended 43
Section 32C amended 44
Section 36 amended 44
Section 40 deleted 44
Section 47 deleted 45
Section 48 amended 45
Section 49 amended 45
Section 57 amended 45
Section 71 amended 45
Section 78 deleted 46
Section 112 amended 46
Section 119 amended 46
Section 122B amended 46
Section 123 amended 46
Section 130 amended 47
Section 131 amended 47
Section 131A inserted 48

131A. Relationship between Swan Valley Planning Scheme and other planning schemes or policies 48

Section 134 amended 49
Section 138A inserted 49

138A. Commission’s functions when approving subdivision etc. in Swan Valley 49

Section 170 amended 50
Section 171A amended 50
Section 175 amended 50
Section 181 amended 51
Section 196 amended 52
Section 197 amended 52
Section 198 amended 52
Section 199 amended 53
Section 217 amended 54
Section 218 amended 54
Section 241 amended 54
Section 252 amended 55
Section 266 amended 55
Section 269 amended 56
Schedule 2 clause 1 amended 56
Schedule 2 clause 2 amended 56

Part 10 — Other Acts amended

Division 1 — Control of Vehicles (Off‑road Areas) Act 1978 amended

Act amended 57
Section 16 amended 57
Section 47 amended 57

Division 2 — Electricity Corporations Act 2005 amended

Act amended 57
Section 60 amended 57

Division 3 — Environmental Protection Act 1986 amended

Act amended 58
Section 3 amended 58
Section 48AAA amended 60
Section 48C amended 60

Division 4 — Heritage Act 2018 amended

Act amended 60
Section 85 amended 60

Division 5 — Jetties Act 1926 amended

Act amended 61
Section 7 amended 61

Division 6 — Land Tax Assessment Act 2002 amended

Act amended 61
Section 15 amended 61
Glossary amended 61

Division 7 — Local Government Act 1995 amended

Act amended 62
Section 6.33 amended 62

Division 8 — Marine and Harbours Act 1981 amended

Act amended 62
Section 12 amended 62

Division 9 — Metropolitan Redevelopment Authority Act 2011 amended

Act amended 62
Section 3 amended 63
Section 30 amended 63

Division 10 — Planning and Development Amendment Act 2020 amended

Act amended 63
Section 25 deleted 63
Section 30 deleted 63

Division 11 — Railway (METRONET) Act 2018 amended

Act amended 63
Section 5 amended 64
Section 6 amended 64

Division 12 — Sale of Land Act 1970 amended

Act amended 64
Section 16 amended 64

Division 13 — Soil and Land Conservation Act 1945 amended

Act amended 65
Schedule amended 65

Division 14 — Strata Titles Act 1985 amended

Act amended 65
Section 223A inserted 65

223A. Application in Swan Valley 65

Division 15 — Swan and Canning Rivers Management Act 2006 amended

Act amended 66
Section 57 amended 66
Section 67 amended 66
Section 68 amended 67
Section 72 amended 67
Section 73 amended 68
Section 74 amended 68
Section 75 amended 69
Section 76 amended 69
Section 80 amended 69
Section 82 amended 69
Section 87 amended 70

Division 16 — Water Agencies (Powers) Act 1984 amended

Act amended 70
Section 38 amended 70

Division 17 — Water Services Act 2012 amended

Act amended 70
Section 143 amended 70
Section 151 amended 71

Division 18 — Waterways Conservation Act 1976 amended

Act amended 71
Section 36 amended 71

Schedule 1 — Indicative map of Swan Valley

Notes

Compilation table 73

Defined terms

Western Australia

Swan Valley Planning Act 2020

An Act to —

provide for a Swan Valley Planning Scheme that will apply to the Swan Valley for the purposes of the Planning and Development Act 2005; and
provide for the establishment and functions of a Swan Valley Strategic Leadership Group and a Swan Valley Statutory Planning Committee; and
amend the Planning and Development Act 2005 in relation to its application in the Swan Valley; and
repeal the Swan Valley Planning Act 1995; and
make consequential amendments to other Acts,

and for related purposes.

Part 1 — Preliminary

1. Short title

This is the Swan Valley Planning Act 2020.

2. Commencement

(1) This Act comes into operation as follows —

(a) Part 1 — on the day on which this Act receives the Royal Assent (assent day);

(b) sections 53, 54 and 62 —

(i) if the Planning and Development Amendment Act 2020 section 65 comes into operation on or before the day fixed under paragraph (e) — on the day fixed under paragraph (e); or

(ii) otherwise — immediately after the day on which the Planning and Development Amendment Act 2020 section 65 comes into operation;

(i) if the Planning and Development Amendment Act 2020 section 56 comes into operation on or before the day fixed under paragraph (e) — on the day fixed under paragraph (e); or

(ii) otherwise — immediately after the Planning and Development Amendment Act 2020 section 56 comes into operation;

(d) section 84(2) —

(i) if the Planning and Development Amendment Act 2020 section 18 comes into operation on or before the day fixed under paragraph (e) — on the day fixed under paragraph (e); or

(ii) otherwise — immediately after the Planning and Development Amendment Act 2020 section 18 comes into operation;

(e) the rest of the Act — on a day fixed by proclamation.

(2) Despite subsection (1), if the Planning and Development Amendment Act 2020 Part 6 Division 1 comes into operation before the day fixed under subsection (1)(e), sections 66 and 67 and Part 10 Division 10 of this Act —

(a) do not come into operation; and

(b) are deleted on the day fixed under subsection (1)(e).

(3) However, if no day is fixed under subsection (1)(e) before the end of the period of 10 years beginning on assent day, this Act is repealed on the day after that period ends.

3. Terms used

In this Act —

applicable regulations means —

(a) if there are relevant local planning scheme regulations, as defined in section 40(1), that deal with a matter in relation to local planning schemes that is substantially similar to the matter referred to in the provision in which the term is used — those relevant local planning scheme regulations as they apply for the purposes of this Act under section 40; or

(b) if there are no relevant local planning scheme regulations of the kind referred to in paragraph (a) —regulations made under section 41 for the purposes of the provision in which the term is used;

Commission means the Western Australian Planning Commission established by the Planning and Development Act 2005 section 7(1);

Department means the department of the Public Service principally assisting in the administration of this Act;

development has the meaning given in the Planning and Development Act 2005 section 4(1);

EPA means the Environmental Protection Authority continued in existence under the Environmental Protection Act 1986 section 7(1);

Heritage Council means the Heritage Council of Western Australia established by the Heritage Act 2018 section 11(1);

Herne Hill townsite means the area in the Swan Valley bounded by the Great Northern Highway to the west, McDonald Street to the north, Railway Crescent to the east and Argyle Street to the south;

improvement scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

land has the meaning given in the Planning and Development Act 2005 section 4(1);

local planning scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

Metropolitan Region Scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

Minister for Heritage means the Minister who administers the Heritage Act 2018;

Minister for the Environment means the Minister who administers the Environmental Protection Act 1986;

officer of the Commission has the meaning given in the Planning and Development Act 2005 section 4(1);

planning code has the meaning given in the Planning and Development Act 2005 section 4(1);

public authority has the meaning given in the Planning and Development Act 2005 section 4(1);

State planning policy has the meaning given in the Planning and Development Act 2005 section 4(1);

State Register of Heritage Places means the register established and maintained under the Heritage Act 2018 section 35(1);

Swan Valley has the meaning given in section 4(1);

Swan Valley local government means the local government for the local government district that includes the Swan Valley;

Swan Valley Planning Scheme means the Swan Valley Planning Scheme in force under Part 2;

Swan Valley rural land means land in the Swan Valley that is used, or is suitable to be used, for horticulture or viticulture;

Swan Valley Statutory Planning Committee means the committee established under section 33(1);

Swan Valley Strategic Leadership Group means the committee established by section 28(1).

[Section 3 amended: No. 45 of 2020 s. 53; No. 34 of 2023 s. 53.]

4. Swan Valley

(1) For the purposes of this Act, the Swan Valley is the area delineated in black on the plan number 0.0731 entitled “Area of the Swan Valley” held at the office of the Commission and certified by the Minister as the plan prepared for the purposes of this section.

(2) The area delineated in black on the map in Schedule 1 is indicative of the area of the Swan Valley.

(3) In any proceedings, a plan purporting to be a copy of the plan referred to in subsection (1) showing the boundaries of the Swan Valley is evidence of those boundaries.

5. Objects of Act

(1) The objects of this Act are —

(a) to protect the Swan Valley as a productive agricultural area within the Perth metropolitan region; and

(b) to maintain the rural character and conserve the heritage of the Swan Valley; and

(c) to ensure that horticulture, viticulture, hobby farming and equestrian activities remain the principal land uses in the Swan Valley; and

(d) to discourage land uses in the Swan Valley that are incompatible with its rural character and the principal land uses referred to in paragraph (c); and

(e) to ensure that tourism and hospitality in the Swan Valley are consistent with the objects in paragraphs (a) to (d); and

(f) other than in the Herne Hill townsite, to prevent new residential development in the Swan Valley except for single houses on single lots in keeping with the rural character of the Swan Valley; and

(g) to avoid overstocking, clearing of natural vegetation, activities causing pollution or degradation of the environment, or any other land management practices detrimental to the Swan Valley; and

(h) to protect the natural environment of the Swan Valley, including by reducing nutrient levels in the Swan River; and

(i) to ensure that, for all development in the Swan Valley, appropriate consideration is given to building setbacks, retention of vegetation, suitable building materials and boundary fencing; and

(j) to ensure that new non‑rural development of Swan Valley rural land is designed and located so as to reduce any nuisance or other detrimental impacts that could arise from existing or future uses of other Swan Valley rural land for horticulture or viticulture; and

(k) to ensure that development and subdivision in the Swan Valley are only permitted if this does not prevent the objects in paragraphs (a) to (j) from being satisfied.

(2) A person exercising a power or performing a function under this Act, or under the Planning and Development Act 2005 in relation to the Swan Valley Planning Scheme, must have regard to the objects of this Act.

6. Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2 — Swan Valley Planning Scheme

Division 1 — Nature and effect of scheme

7. Swan Valley Planning Scheme

(1) A scheme called the Swan Valley Planning Scheme is to be prepared by the Commission and approved by the Minister in accordance with this Part.

(2) The Swan Valley Planning Scheme is a planning scheme for the purposes of the Planning and Development Act 2005.

8. Scheme has legislative effect

(1) The Swan Valley Planning Scheme has legislative effect.

(2) For the purposes of the Interpretation Act 1984, the Swan Valley Planning Scheme is subsidiary legislation made under this Act.

(3) The Interpretation Act 1984 section 41 does not apply to the Swan Valley Planning Scheme or to an amendment of the Swan Valley Planning Scheme.

9. Effect of scheme for Planning and Development Act 2005

(1) In this section —

relevant planning scheme means —

(a) the Metropolitan Region Scheme; or

(b) the local planning scheme that applies to land in the Swan Valley immediately before the scheme start day; or

scheme start day means the day on which the first Swan Valley Planning Scheme comes into operation.

(2) On and from the scheme start day —

(a) each relevant planning scheme ceases to apply —

(i) to land in the Swan Valley; and

(ii) to any development of that land that commenced on or after that day;

and

(b) the Planning and Development Act 2005 continues to apply to land and development referred to in paragraph (a), but the planning scheme that applies to that land and development is the Swan Valley Planning Scheme.

Division 2 — Contents of scheme

10. Contents of scheme

(1) The Swan Valley Planning Scheme must be consistent with the objects of this Act.

(2) The Swan Valley Planning Scheme may, subject to subsection (1) and sections 12 and 13 —

(a) include any provision that the Commission considers will promote the orderly and proper planning, development and management of the Swan Valley; and

(b) make provision, in relation to land in the Swan Valley, for all or any of the purposes, provisions, powers or works referred to in the Planning and Development Act 2005 Schedule 7; and

11. Scheme may incorporate provisions of other planning instruments

(1) The Swan Valley Planning Scheme may incorporate, with or without modifications, any of the following —

(a) provisions of a planning code;

(b) provisions of the Metropolitan Region Scheme;

(d) deemed provisions, as defined in the Planning and Development Act 2005 section 257B(1).

(2) If the Swan Valley Planning Scheme incorporates provisions (the incorporated provisions) referred to in subsection (1) —

(a) the scheme is to have effect as if the incorporated provisions, as in force from time to time, or any subsequent provisions by which the incorporated provisions are replaced, were set out in full in the scheme; and

(b) the provisions are to have effect as part of the scheme subject to any modifications set out in the scheme.

(3) Modifications referred to in subsection (2)(b) prevail over any later amendments of the incorporated provisions, or subsequent provisions referred to in subsection (2)(a), that are inconsistent with the modifications.

[Section 11 amended: No. 45 of 2020 s. 54.]

12. Planning areas and provisions about subdivision and minimum lot sizes

(1) The Swan Valley Planning Scheme must provide for the Swan Valley to be divided into planning areas (the Swan Valley planning areas).

(2) The Swan Valley Planning Scheme must set out planning objectives for —

(a) the whole of the Swan Valley; and

(b) each of the Swan Valley planning areas.

(3) The Swan Valley Planning Scheme must, for each of the Swan Valley planning areas, either —

(a) provide that subdivision of land is prohibited in that area; or

(b) set out a minimum lot size that applies to subdivision of land in that area and provide that land in that area must not be subdivided into lots smaller than that minimum lot size.

(4) Nothing in this section prevents the Swan Valley Planning Scheme from providing for zones and reserves in the Swan Valley.

13. Provisions to ensure non‑rural development designed to minimise impacts from rural land uses

(1) In this section —

non‑rural development means residential development, tourism or hospitality development, or any other development, that is not related to horticulture, viticulture, hobby farming or equestrian activities.

(2) The Swan Valley Planning Scheme must include provisions for the purpose of ensuring that any new non‑rural development of Swan Valley rural land is designed and located so as to minimise any nuisance or other detrimental impacts that could arise from existing or possible future uses of other Swan Valley rural land for horticulture or viticulture.

(3) The provisions referred to in subsection (2) may, without limitation, include provisions relating to setbacks or otherwise dealing with the position of buildings on lots.

Division 3 — Making and amending scheme

Subdivision 1 — Preliminary

14. Term used: proposed scheme or amendment

In this Division —

proposed scheme or amendment means —

(a) the first proposed Swan Valley Planning Scheme; or

(b) a proposed Swan Valley Planning Scheme to replace the existing Swan Valley Planning Scheme; or

15. First proposed scheme

The Commission must prepare the first proposed Swan Valley Planning Scheme in accordance with this Part and submit it for approval by the Minister under Subdivision 4 as soon as practicable after the day on which this section comes into operation.

Note for this section:

Under s. 44, the process to be followed in preparing the first proposed Swan Valley Planning Scheme is different from the process that applies under Subdivisions 2 and 3.

16. Replacement or amendment of scheme

(1) The Swan Valley Planning Scheme may be —

(a) repealed by a subsequent Swan Valley Planning Scheme prepared by the Commission and approved by the Minister in accordance with this Part; or

(b) amended by an amendment prepared by the Commission and approved by the Minister in accordance with this Part.

(2) The Commission may, from time to time, prepare for approval by the Minister —

(a) a proposed Swan Valley Planning Scheme to replace the existing Swan Valley Planning Scheme; or

(b) a proposed amendment of the Swan Valley Planning Scheme.

Subdivision 2 — Processes to be followed in preparing proposed scheme or amendment

17. Matters to which Commission must have regard

In preparing a proposed scheme or amendment, the Commission must have regard to the following —

(a) the objects of this Act;

(b) any State planning policy that affects the Swan Valley;

(d) the views of any person or body consulted under section 18;

(e) any advice of the Heritage Council on referral under section 19(2).

18. Consultation requirements

Before submitting a proposed scheme or amendment to the Minister, the Commission must —

(a) consult the Swan Valley Strategic Leadership Group; and

(b) consult the Swan Valley local government; and

(c) make reasonable endeavours to consult any public authorities or persons that appear to the Commission to have an interest in the proposed scheme or amendment.

19. Referral to Heritage Council

(1) This section applies to a proposed scheme or amendment that affects or may affect any land or waters in the Swan Valley if —

(a) the land or waters are the subject of an entry in the State Register of Heritage Places; or

(b) the Heritage Council has commenced a review under the Heritage Act 2018 section 40 in relation to the land or waters, but —

(i) the Heritage Council has not yet made a recommendation, and has not yet decided not to make a recommendation, under that section; or

(ii) the Heritage Council has made a recommendation under that section but the Minister for Heritage has not yet given a direction under section 41(1) of that Act in relation to that recommendation;

(2) As soon as practicable after preparing the proposed scheme or amendment, the Commission must refer the proposed scheme or amendment to the Heritage Council for advice.

(3) The Commission must not proceed, without the consent of the Minister, with the proposed scheme or amendment unless the advice of the Heritage Council has been received.

20. Referral to EPA

(1) As soon as practicable after preparing a proposed scheme or amendment, the Commission must refer the proposed scheme or amendment to the EPA by giving to the EPA —

(a) a copy of the proposed scheme or amendment; and

(b) any other written information about the proposed scheme or amendment that is necessary to enable the EPA to comply with the Environmental Protection Act 1986 section 48A in relation to the proposed scheme or amendment.

(2) Despite subsection (1), a proposed scheme or amendment of a class prescribed by regulations under the Environmental Protection Act 1986 section 48AAA(2) is not required to be referred to the EPA.

[Section 20 amended: No. 45 of 2020 s. 55.]

21. Environmental review to be undertaken if required by EPA

(1) This section applies if, for the purposes of assessing a proposed scheme or amendment referred to the EPA under section 20, the EPA has under the Environmental Protection Act 1986 section 48C(1)(a) —

(a) required the Commission, if it wishes the proposed scheme or amendment to proceed, to undertake an environmental review of the proposed scheme or amendment and report on it to the EPA; and

(b) issued instructions (the review instructions) concerning the scope and content of that environmental review.

(2) If the Commission wishes to proceed with the proposed scheme or amendment, the Commission must undertake, or cause under section 22 to be undertaken, an environmental review of the proposed scheme or amendment in accordance with the review instructions.

(3) The Commission must not advertise the proposed scheme or amendment under section 23 until —

(a) the Commission has given the report on the environmental review to the EPA; and

(b) either of the following occurs —

(i) the EPA advises that the review has been undertaken in accordance with the review instructions;

(ii) the period of 30 days beginning on the day on which the report on the review is given to the EPA expires without the EPA having advised whether or not the review has been undertaken in accordance with the review instructions.

(4) If the EPA advises that the review has not been undertaken in accordance with the review instructions, the Commission may —

(a) comply with subsection (2); or

(b) request the Minister to consult the Minister for the Environment and, if possible, agree with that Minister on whether or not the review has been undertaken in accordance with those instructions.

(5) If the Minister complies with a request made under subsection (4)(b) and —

(a) agrees with the Minister for the Environment on whether or not the review has been undertaken in accordance with the review instructions — their decision is final and without appeal or review; or

(b) cannot agree with the Minister for the Environment on whether or not the review has been undertaken in accordance with the review instructions — the Environmental Protection Act 1986 section 48J applies.

(6) The Commission may, in accordance with the applicable regulations, recover the expenses incurred by the Commission in undertaking an environmental review in accordance with the review instructions.

22. Environmental review to be undertaken by land owner in some circumstances

(1) This section applies if —

(a) the Commission is required under section 21(2) to undertake an environmental review of a proposed scheme or amendment in accordance with the review instructions referred to in that section; and

(b) the proposed scheme or amendment was prepared at the request of an owner of land to which the proposed scheme or amendment relates.

(2) The Commission may, by written notice served on the owner of land, request the owner to undertake an environmental review of the proposed scheme or amendment in accordance with the review instructions.

(3) If an owner of land served with a notice under subsection (2) wishes the proposed scheme or amendment to proceed, the owner must undertake the environmental review in accordance with the review instructions and give it to the Commission.

Subdivision 3 — Advertising proposed scheme or amendment

23. Advertising proposed scheme or amendment

After complying with sections 20 and 21 (if applicable) in relation to a proposed scheme or amendment, the Commission must, in accordance with the applicable regulations —

(a) advertise the proposed scheme or amendment for public inspection; and

(b) consider public submissions on the proposed scheme or amendment.

24. Commission’s duties if proposed scheme or amendment to be assessed under Environmental Protection Act 1986

(1) This section applies if the Commission has been informed by the EPA under the Environmental Protection Act 1986 section 48A(1)(b)(i) that a proposed scheme or amendment referred to the EPA under section 20 should be assessed by the EPA under Part IV Division 3 of that Act.

(2) The Commission must —

(a) as soon as practicable, but in any event within 7 days after the expiry of the period during which the proposed scheme or amendment is advertised under section 23, give the EPA a copy of each submission —

(i) made during that period; and

(ii) relating wholly or partly to environmental issues raised by the proposed scheme or amendment;

and

(b) within 42 days, or any longer period that the Minister allows, after the expiry of the period referred to in paragraph (a), inform the EPA of its views on and response to the environmental issues raised by the submissions referred to in paragraph (a).

Subdivision 4 — Approving and publicising scheme or amendment

25. Approval of proposed scheme or amendment

(1) After complying with the applicable requirements of Subdivisions 2 and 3 in relation to a proposed scheme or amendment, the Commission must submit the proposed scheme or amendment to the Minister.

(2) If a proposed scheme or amendment is submitted under this section, the Minister may —

(a) subject to subsection (3) and section 26, approve the proposed scheme or amendment; or

(b) require the Commission to modify the proposed scheme or amendment in any manner that the Minister specifies before the proposed scheme or amendment is resubmitted for the Minister’s approval under this subsection; or

(3) The Minister must not approve a proposed scheme or amendment under subsection (2)(a) unless the Minister is satisfied that the proposed scheme or amendment is consistent with the objects of this Act.

(4) The Minister must notify the Commission in writing of a decision under subsection (2).

26. Approval of scheme or amendment referred to EPA

(1) The Minister must not under section 25(2)(a) approve a proposed scheme or amendment referred to the EPA under section 20 if the Minister has reached agreement with the Minister for the Environment under the Environmental Protection Act 1986 section 48A(2)(b) in relation to the proposed scheme or amendment.

(2) The Minister must not under section 25(2)(a) approve a proposed scheme or amendment referred to the EPA under section 20 unless —

(a) the EPA has informed the Minister under the Environmental Protection Act 1986 section 48A(1)(a) that the EPA considers that the proposed scheme or amendment should not be assessed by the EPA under Part IV Division 3 of that Act; or

(b) the Minister —

(i) has received a statement under the Environmental Protection Act 1986 section 48F(2) in respect of the conditions, if any, to which the proposed scheme or amendment is subject; and

(ii) is satisfied that the conditions, if any, have been incorporated into the proposed scheme or amendment;

(i) a decision has been made under the Environmental Protection Act 1986 section 48J in respect of the conditions, if any, to which the proposed scheme or amendment is subject; and

(ii) the Minister is satisfied that the conditions, if any, have been incorporated into the proposed scheme or amendment;

(d) the period of 28 days referred to in the Environmental Protection Act 1986 section 48A(1)(b)(i) has expired without the EPA having informed the Commission under that section.

27. Publication, advertisement and commencement of approved scheme or amendment

(1) If the Minister approves a Swan Valley Planning Scheme or an amendment of the Swan Valley Planning Scheme (the approved scheme or amendment), the Commission must, as soon as practicable after being notified of the approval —

(a) ensure that the approved scheme or amendment is published in the Gazette; and

(b) advertise the approved scheme or amendment in accordance with the applicable regulations; and

(2) An approved scheme or amendment comes into operation on the day on which the approved scheme or amendment is published under subsection (1)(a) or on a later day specified in the approved scheme or amendment.

(3) It is sufficient compliance with subsection (1)(a) if the approved scheme or amendment is published in the Gazette without any maps, plans or diagrams that form part of the approved scheme or amendment.

Part 3 — Swan Valley Strategic Leadership Group

28. Swan Valley Strategic Leadership Group established

(1) A committee called the Swan Valley Strategic Leadership Group is established.

(2) The Swan Valley Strategic Leadership Group is to consist of the following persons appointed by the Minister —

(a) a presiding member;

(b) 6 other members.

(3) The Minister is to ensure that each person appointed under subsection (2)(b) —

(a) has practical knowledge or experience that is relevant to the functions of the Swan Valley Strategic Leadership Group; or

(b) is otherwise an appropriate person to represent the interests of Swan Valley residents and businesses.

(4) A person who is a member of the Swan Valley Statutory Planning Committee cannot be appointed under subsection (2).

(5) The Swan Valley Strategic Leadership Group may establish 1 or more committees to assist it in the performance of its functions.

(6) Subject to the regulations, the Swan Valley Strategic Leadership Group may determine its own procedures.

29. Functions of Swan Valley Strategic Leadership Group

(1) The Swan Valley Strategic Leadership Group has the following functions —

(a) to give information to the Minister on matters relating to the Swan Valley, including —

(i) the protection of the Swan Valley as a productive agricultural region within the Perth metropolitan region; and

(ii) the promotion and marketing of horticulture, viticulture, tourism, hospitality, hobby farming and equestrian activities in the Swan Valley; and

(iii) the enhancement and protection of the cultural heritage, built heritage, recreation and landscape values of the Swan Valley;

(b) to prepare reports or other documents in relation to any of the matters referred to in paragraph (a);

(d) to comment on any proposed policies, schemes or instruments under the Planning and Development Act 2005 or another written law that affect the Swan Valley;

(e) to provide direction and support to public authorities, industry, commerce and the community in relation to the Swan Valley and furthering the objects of this Act;

(f) any other functions given to the Swan Valley Strategic Leadership Group by this Act or another written law.

(2) It is not a function of the Swan Valley Strategic Leadership Group to provide advice or comments, or to prepare reports or other documents, in relation to particular applications for approval of subdivision or development in the Swan Valley.

(3) The Swan Valley Strategic Leadership Group may do all things necessary or convenient to be done for or in connection with the performance of its functions.

30. Remuneration

A member of the Swan Valley Strategic Leadership Group is entitled to be paid the remuneration and allowances (if any) determined in respect of the member by the Minister on the recommendation of the Public Sector Commissioner.

31. Use of staff and facilities of public authorities

(1) The Swan Valley Strategic Leadership Group may, by arrangement with the relevant employing authority, make use either full‑time or part‑time of the services of any officer or employee employed —

(a) in the Public Service; or

(b) in a State agency; or

(2) The Swan Valley Strategic Leadership Group may, by arrangement with a department of the Public Service or a State agency, make use of any facilities of the department or agency.

(3) An arrangement under subsection (1) or (2) must be made on terms agreed to by the parties.

32. Regulations about Swan Valley Strategic Leadership Group

The regulations may make provision for or in relation to the Swan Valley Strategic Leadership Group, including —

(a) the constitution of the Group, including term of office, vacancies and resignation or termination of members; and

(b) the procedures of the Group.

Part 4 — Swan Valley Statutory Planning Committee

33. Swan Valley Statutory Planning Committee established

(1) The Commission must establish a committee of the Commission to be known as the Swan Valley Statutory Planning Committee.

(2) The Swan Valley Statutory Planning Committee is to consist of —

[(a) deleted]

(b) 2 or more persons appointed by the Commission, with the approval of the Minister, who must be members of the Statutory Planning Committee established under the Planning and Development Act 2005 Schedule 2 clause 4; and

(c) 1 other person appointed by the Commission, with the approval of the Minister, to represent the Swan Valley local government; and

(d) 2 other persons appointed by the Commission, with the approval of the Minister, to represent the interests of Swan Valley residents and businesses.

(3) The Commission is to ensure that each person appointed under subsection (2)(d) —

(a) has practical knowledge or experience that is relevant to horticulture, viticulture, cultural heritage, landscape protection, tourism, hospitality, hobby farming or equestrian activities in the Swan Valley; or

(b) is otherwise an appropriate person to represent the interests of Swan Valley residents and businesses.

(4) A person who is a member of the Swan Valley Strategic Leadership Group cannot be appointed under subsection (2)(b), (c) or (d).

[Section 33 amended: No. 34 of 2023 s. 54.]

34. Functions of Swan Valley Statutory Planning Committee

(1) The Swan Valley Statutory Planning Committee has the function of exercising the powers or duties delegated to it under subsection (2).

(2) The Commission may, by resolution, delegate to the Swan Valley Statutory Planning Committee any power or duty of the Commission under the Planning and Development Act 2005, another provision of this Act or another written law.

(3) The Commission must ensure that the following are delegated to the Swan Valley Statutory Planning Committee under subsection (2) —

(a) the functions of the Commission under Part 2 of this Act;

(b) the functions that the Commission has under the Planning and Development Act 2005 as the responsible authority for the Swan Valley Planning Scheme;

(d) substantially the same functions of the Commission under the Planning and Development Act 2005 as are delegated to the Statutory Planning Committee established under the Planning and Development Act 2005 Schedule 2 clause 4, but only to the extent that those functions relate to land and development in the Swan Valley.

(4) The Commission must not delegate a function referred to in subsection (3)(a) to (c) to another person or body under the Planning and Development Act 2005 section 16(1).

35. Subdelegation of functions by Swan Valley Statutory Planning Committee

(1) The Swan Valley Statutory Planning Committee may, by resolution, subdelegate any power or duty of the Commission delegated to it under section 34(2).

(2) A subdelegation under subsection (1) may be made to —

(a) a member (as that term is defined in the Planning and Development Act 2005 section 4(1)); or

(b) a subcommittee; or

(d) a public authority or a member or officer of a public authority; or

(e) the Swan Valley local government; or

(f) a committee of the council of the Swan Valley local government; or

(g) an employee of the Swan Valley local government.

(3) A person or committee to whom a function is subdelegated under subsection (1) cannot subdelegate that function.

[Section 35 amended: No. 34 of 2023 s. 55.]

36. General provisions about delegation under s. 34 and 35

(1) A delegation under section 34(2) takes effect on the day after the day on which the resolution is made or on a later day specified in the resolution.

(1A) The Commission must publish a copy of a resolution under section 34(2) on a website maintained by, or on behalf of, the Commission (but a failure to do this does not invalidate the delegation).

(1B) A subdelegation under section 35(1) takes effect on the day after the day on which the resolution is made or on a later day specified in the resolution.

(1C) The Swan Valley Statutory Planning Committee must publish a copy of a resolution under section 35(1) on a website maintained by, or on behalf of, the Committee (but a failure to do this does not invalidate the subdelegation).

(2) A person or committee exercising or performing a power or duty that has been delegated or subdelegated to the person or committee under section 34 or 35 is taken to do so in accordance with the terms of the delegation or subdelegation unless the contrary is shown.

(3) Nothing in section 34 or 35 limits the ability of the Commission or the Swan Valley Statutory Planning Committee to perform a function through an officer or agent.

[Section 36 amended: No. 34 of 2023 s. 56.]

Part 5 — Miscellaneous

37. Delegation by Minister

(1) The Minister may delegate to a person any power or duty of the Minister under another provision of this Act.

(2) The delegation must be in writing signed by the Minister.

(3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the Minister to perform a function through an officer or agent.

38. Protection from liability

(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(2) The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted.

(3) Despite subsection (1), neither the Commission nor the State nor a local government is relieved of any liability that it might have for another person having done anything as described in that subsection.

(4) In this section, a reference to the doing of anything includes a reference to an omission to do anything.

39. Certain references in written laws to include Swan Valley Planning Scheme or things done under scheme

(1) A reference in a written law to a planning scheme or scheme under, or in force under, the Planning and Development Act 2005 includes, where the context requires, a reference to the Swan Valley Planning Scheme.

(2) A reference in a written law to approval of development under the Planning and Development Act 2005 includes, where the context requires, a reference to approval of development under the Swan Valley Planning Scheme.

(3) A reference in a written law to requirements under the Planning and Development Act 2005 includes, where the context requires, a reference to requirements under this Act.

(4) This section does not apply to references in this Act or the Planning and Development Act 2005.

40. Application of regulations under Planning and Development Act 2005

(1) In this section —

relevant local planning scheme regulations —

(a) means regulations made under the Planning and Development Act 2005 section 258, 259 or 261; but

(b) does not include any regulations or provisions of regulations prescribed for the purposes of this paragraph.

(2) Relevant local planning scheme regulations apply for the purposes of this Act as if —

(a) the Swan Valley Planning Scheme were a local planning scheme; and

(b) a reference to a local government were a reference to the Commission.

(3) Relevant local planning scheme regulations apply under subsection (2) with any modifications prescribed by regulations made for the purposes of this subsection and any other necessary modifications.

(4) If regulations made under the Planning and Development Act 2005 section 261 are relevant local planning scheme regulations, the Commission may, in relation to the Swan Valley Planning Scheme, impose fees under those regulations as if it were a local government and that section applies accordingly.

41. Regulations

(1) The Governor may make regulations prescribing matters —

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), the regulations may —

(a) make provision for or in relation to the making of applications for the purposes of this Act, including the manner in which applications are to be made and the procedure to be followed; and

(b) prescribe forms for the purposes of this Act; and

(c) make provision for or in relation to the imposition, collection and recovery of fees and charges for the purposes of this Act; and

(d) confer functions on the Commission, the Swan Valley Strategic Leadership Group, the chief executive officer of the Department or any other person; and

(e) make provision for or in relation to the Swan Valley Planning Scheme, including —

(i) the form of the scheme; and

(ii) the matters for which the scheme may or must provide; and

(iii) the process for the preparation, advertisement, approval and amendment of the scheme; and

(iv) review of the scheme; and

(v) the interaction of the scheme with any plans or other instruments made under the Planning and Development Act 2005;

and

(f) make provision with respect to the persons from whom, and the means by which, the Commission may recover expenses incurred by it in undertaking an environmental review required by the Environmental Protection Act 1986 section 48C(1)(a) in relation to a proposed Swan Valley Planning Scheme or amendment of the Swan Valley Planning Scheme; and

(g) provide for offences against the regulations and prescribe penalties for those offences not exceeding a fine of $50 000.

42. Review of Act

(1) The Minister must review the operation and effectiveness of this Act, and prepare a report based on the review —

(a) as soon as practicable after the 5th anniversary of the day on which this section comes into operation; and

(b) after that, at intervals of not more than 5 years.

(2) The review must address the following —

(a) the effectiveness of —

(i) the operations of the Swan Valley Strategic Leadership Group and the Swan Valley Statutory Planning Committee; and

(ii) the Swan Valley Planning Scheme;

(b) the need for the continuation of —

(i) the functions of the Swan Valley Strategic Leadership Group and the Swan Valley Statutory Planning Committee; and

(ii) the Swan Valley Planning Scheme;

(3) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 5th anniversary or the expiry of the period of 5 years, as the case may be.

(4) If, in the Minister’s opinion, a House of Parliament will not sit during the period of 21 days after finalisation of the report, the Minister must send the report to the Clerk of the House.

(5) When the report is sent to the Clerk of a House it is taken to have been laid before the House.

(6) The laying of the report that is taken to have occurred under subsection (5) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk receives the report.

Part 6 — Transitional provisions

43. Terms used

In this Part —

relevant planning scheme has the meaning given in section 9(1);

scheme start day has the meaning given in section 9(1).

44. Process for making first Swan Valley Planning Scheme

(1) Part 2 Division 3 Subdivisions 2 and 3 do not apply to the first proposed Swan Valley Planning Scheme (the first proposed scheme) that the Commission is required under section 15 to prepare and submit to the Minister for approval.

(2) However, the Commission must not submit the first proposed scheme to the Minister for approval under section 25(1) unless —

(a) the Commission has had regard to the matters referred to in section 17(a) to (c); and

(b) the Commission has given a draft of the first proposed scheme to the Minister and the Minister has —

(i) given the draft to each of the EPA and the Heritage Council; and

(ii) requested each of the EPA and the Heritage Council to give advice on the draft;

and

(i) consulted the Swan Valley local government about the first proposed scheme; and

(ii) made reasonable endeavours to consult any public authorities or persons that appear to the Commission to have an interest in the first proposed scheme; and

(iii) had regard to the views of any person or body consulted under subparagraph (i) or (ii); and

(iv) had regard to any advice received by the Minister from the EPA and the Heritage Council in response to the request referred to in paragraph (b)(ii).

(3) For the purposes of subsection (2), it does not matter whether any consultation was undertaken, or any other thing was done, before, on or after the day on which this section came into operation.

45. Application of Interpretation Act 1984

Except to the extent that this Part expressly provides differently —

(a) the Interpretation Act 1984 applies in relation to the repeal of an enactment by Part 7; and

(b) the Interpretation Act 1984 applies in relation to section 9(2) as if —

(i) each relevant planning scheme were an enactment; and

(ii) section 9(2) repealed each relevant planning scheme, to the extent that the scheme applies to the land and development referred to in that section, on the scheme start day.

46. Existing lawful or approved development

(1) Section 9(2) and the Swan Valley Planning Scheme do not apply in relation to a development that was lawfully being carried out in the Swan Valley immediately before the scheme start day.

(2) A development referred to in subsection (1) or in relation to which all necessary approvals under the relevant planning schemes were in force immediately before the scheme start day —

(a) may be lawfully carried out as if section 9(2) and the Swan Valley Planning Scheme were not in operation; and

(b) is governed by the relevant planning schemes despite section 9(2).

47. Applications for approval not finalised on scheme start day

(1) This section applies if, on the scheme start day, an application for approval under a relevant planning scheme in relation to land in the Swan Valley has been made but not decided.

(2) On and after the scheme start day, the application is taken to be made under, and the decision on the application must be made in accordance with, the Swan Valley Planning Scheme rather than the relevant planning scheme.

(3) If before the scheme start day, under regulations made for the purposes of the Planning and Development Act 2005 Part 11A, the application was to be determined by a DAP (as defined in section 4(1) of that Act), on and after the scheme start day the application must be decided in accordance with the Swan Valley Planning Scheme by the Commission rather than the DAP.

48. State Administrative Tribunal review not finalised on scheme start day

(1) This section applies if, on the scheme start day —

(a) an application to the State Administrative Tribunal under the Planning and Development Act 2005 Part 14 has been made for a review of a decision (the reviewed decision) under a relevant planning scheme in relation to land in the Swan Valley; and

(b) the Tribunal has not made a final decision on the application.

(2) On and after the scheme start day —

(a) the reviewed decision is taken to be a decision under the Swan Valley Planning Scheme; and

(b) the Tribunal’s decision on the application for review is to be made in accordance with the Swan Valley Planning Scheme rather than the relevant planning scheme.

49. Transitional regulations

(1) In this section —

specified means specified or described in the regulations;

transitional matter —

(a) means a matter or issue of a transitional nature that arises as a result of —

(i) the enactment of this Act; or

(ii) the repeal of the Swan Valley Planning Act 1995;

and

(b) includes a saving or application matter.

(2) If there is not sufficient provision in this Act for dealing with a transitional matter, regulations under this Act may prescribe all matters that are required, or are necessary or convenient, to be prescribed for dealing with the transitional matter.

(3) If regulations made under subsection (2) provide that a specified state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in the Gazette but not earlier than the day on which this section comes into operation, the regulations have effect according to their terms.

(4) If regulations made under subsection (2) contain a provision of a kind described in subsection (3), the provision does not operate so as to —

(a) affect in a manner prejudicial to any person (other than the State or an authority of the State) the rights of that person existing before the day of publication of those regulations; or

(b) impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.

Part 7 — Repeals

50. Swan Valley Planning Act 1995 repealed

The Swan Valley Planning Act 1995 is repealed.

51. Swan Valley Planning Regulations 1995 repealed

The Swan Valley Planning Regulations 1995 are repealed.

Part 8 — Amendments to this Act commencing on later of proclamation and commencement of Planning and Development Amendment Act 2020 provisions

52. Act amended

This Part amends this Act.

53. Section 3 amended

In section 3 insert in alphabetical order:

planning code has the meaning given in the Planning and Development Act 2005 section 4(1);

54. Section 11 amended

In section 11(1)(a) delete “State planning policy;” and insert:

planning code;

55. Section 20 amended

(1) In section 20 delete “As soon” and insert:

(1) As soon

(2) At the end of section 20 insert:

Part 9 — Planning and Development Act 2005 amended

56. Act amended

This Part amends the Planning and Development Act 2005.

57. Section 4 amended

(1) In section 4(1) delete the definitions of:

Swan Valley

Swan Valley Planning Committee

(2) In section 4(1) insert in alphabetical order:

Swan Valley has the meaning given in the Swan Valley Planning Act 2020 section 3;

Swan Valley Planning Scheme has the meaning given in the Swan Valley Planning Act 2020 section 3;

(3) In section 4(1) in the definition of planning scheme:

(a) delete “this Act” and insert:

this Act, or the Swan Valley Planning Scheme that has effect under the Swan Valley Planning Act 2020,

(b) in paragraph (a) delete “the provisions of the scheme” and insert:

in the case of a local planning scheme, region planning scheme or improvement scheme that has effect under this Act — the provisions of the scheme

(aa) in the case of the Swan Valley Planning Scheme — the provisions of the scheme being —

(i) the provisions set out in the scheme; and

(ii) any provisions of a kind referred to in the Swan Valley Planning Act 2020 section 11 that, with any modifications set out in the scheme, have effect under that section as part of the scheme;

and

(4) In section 4(1) in the definition of responsible authority paragraph (c) delete “improvement scheme,” and insert:

improvement scheme or the Swan Valley Planning Scheme,

58. Section 13 amended

In section 13 after “Schedule 2” insert:

or the Swan Valley Planning Act 2020 section 33

59. Section 14 amended

In section 14:

(a) in paragraph (j) delete “scheme or improvement scheme” and insert:

scheme, an improvement scheme or the Swan Valley Planning Scheme

(b) in paragraph (k) delete “Schedule 2; and” and insert:

Schedule 2 and the Swan Valley Planning Act 2020; and

schemes, improvement schemes and the Swan Valley Planning Scheme; and

(d) in paragraph (m) delete “this or any other written law.” and insert:

this Act, the Swan Valley Planning Act 2020 or any other written law.

60. Section 19 amended

In section 19 delete “that Schedule.” and insert:

that Schedule or the Swan Valley Planning Act 2020 section 33.

61. Section 20 amended

In section 20(1) after “this Act” insert:

or the Swan Valley Planning Act 2020

62. Section 32C amended

In section 32C(2):

(a) in paragraph (b) delete “122B(1)).” and insert:

122B(1)); or

(b) after paragraph (b) insert:

63. Section 36 amended

In section 36:

(a) in paragraph (d) delete “Act.” and insert:

Act; or

(b) after paragraph (d) insert:

(e) without limiting the Swan Valley Planning Act 2020 section 9, to make any provision in respect of any land in the Swan Valley once the first Swan Valley Planning Scheme has come into operation under that Act.

64. Section 40 deleted

Delete section 40.

65. Section 47 deleted

Delete section 47.

66. Section 48 amended

In section 48(1) delete “Subject to section 47, after —” and insert:

After —

67. Section 49 amended

In section 49 delete the passage that begins with “If — ” and ends with “scheme or amendment under section 48,” and insert:

If the report of the Commission submitted with a scheme or amendment under section 48

68. Section 57 amended

Delete section 57(2).

69. Section 71 amended

In section 71:

(a) in paragraph (b) delete “that Act.” and insert:

that Act; or

(b) after paragraph (b) insert:

(c) without limiting the Swan Valley Planning Act 2020 section 9, to make any provision in respect of any land in the Swan Valley once the first Swan Valley Planning Scheme has come into operation under that Act.

Note: The heading to amended section 71 is to read:

Scheme not to apply to redevelopment area or Swan Valley

70. Section 78 deleted

Delete section 78.

71. Section 112 amended

Delete section 112(3).

72. Section 119 amended

In section 119(3A):

(a) in paragraph (c) delete “2006.” and insert:

	*2006*; or

(b) after paragraph (c) insert:

(d) in the Swan Valley.

73. Section 122B amended

Delete section 122B(2).

74. Section 123 amended

In section 123(2):

(a) after “a region planning scheme” insert:

or the Swan Valley Planning Scheme

(b) delete “scheme.” and insert:

scheme or (if relevant) the Swan Valley Planning Scheme.

Note: The heading to amended section 123 is to read:

Local planning scheme or local law to be consistent with region planning scheme or Swan Valley Planning Scheme

75. Section 130 amended

In section 130:

(a) in paragraph (c) delete “scheme,” and insert:

scheme; and

(b) after paragraph (c) insert:

(d) the Swan Valley Planning Scheme,

76. Section 131 amended

(1) In section 131(1) after “local planning scheme” insert:

or the Swan Valley Planning Scheme

(2) After section 131(2) insert:

(3) In the exercise of any power conferred on it by the Swan Valley Planning Scheme the Commission is obliged to have regard to any regulations made under the Building Act 2011.

77. Section 131A inserted

After section 131 insert:

131A. Relationship between Swan Valley Planning Scheme and other planning schemes or policies

(1) The Minister may, by notice published in the Gazette, make any amendments to a region planning scheme, local planning scheme or improvement scheme that are necessary as a result of the Swan Valley Planning Act 2020 section 9.

(2) On and after the day on which the first Swan Valley Planning Scheme comes into operation under the Swan Valley Planning Act 2020, a State planning policy that applies to land in the Swan Valley has no effect to the extent that it is inconsistent with the Swan Valley Planning Scheme.

(3) The Minister may, by notice published in the Gazette, amend a State planning policy so that the policy is consistent with the Swan Valley Planning Scheme in relation to land in the Swan Valley.

(4) An amendment in a notice published under subsection (1) or (3) has effect, by force of this subsection and without further action under this Act, on the day on which it is published or a later day stated in the notice (which must not be earlier than the day on which the first Swan Valley Planning Scheme comes into operation under the Swan Valley Planning Act 2020).

78. Section 134 amended

Delete section 134(3) to (8).

Note: The heading to amended section 134 is to read:

Relationship of Part to some other laws

79. Section 138A inserted

After section 138 insert:

138A. Commission’s functions when approving subdivision etc. in Swan Valley

(1) In this section —

scheme start day means the day on which the first Swan Valley Planning Scheme comes into operation under the Swan Valley Planning Act 2020.

(2) On and after the scheme start day, section 138(2) to (4) do not apply in relation to the Commission giving an approval under section 135 or 136 relating to land in the Swan Valley (a Swan Valley approval).

(3) Subject to subsection (4), in giving a Swan Valley approval on or after the scheme start day, the Commission —

(a) must have regard to the provisions of the Swan Valley Planning Scheme; and

(b) must not give an approval that conflicts with the provisions of the Swan Valley Planning Scheme.

(4) The Commission may give a Swan Valley approval that conflicts with the provisions of the Swan Valley Planning Scheme on or after the scheme start day if the approval is given in circumstances set out in the regulations.

80. Section 170 amended

(1) In section 170(1A) in the definition of responsible authority paragraph (b) delete “scheme —” and insert:

scheme or the Swan Valley Planning Scheme —

(2) In section 170(1)(c) delete “local government” and insert:

responsible authority

81. Section 171A amended

After section 171A(2) insert:

(2A) A development application that relates to land in the Swan Valley cannot be a prescribed development application.

82. Section 175 amended

(1) In section 175 delete “When” and insert:

(1) When

(2) At the end of section 175 insert:

(2) When land is alleged to be injuriously affected by the making of the first Swan Valley Planning Scheme, no compensation is payable in respect of the injurious affection if or so far as the relevant provisions of the Swan Valley Planning Scheme were also contained in a relevant planning scheme (as defined in the Swan Valley Planning Act 2020 section 9) that applied to the Swan Valley before the scheme start day referred to in that section.

(3) A reference in this section to provisions includes a reference to maps, plans and diagrams.

83. Section 181 amended

After section 181(16) insert:

(16A) The reference in subsection (1)(b) to the planning scheme being amended or revoked includes, in relation to land in the Swan Valley for which compensation for injurious affection was paid before the scheme start day referred to in the Swan Valley Planning Act 2020 section 9 —

(a) a reference to that planning scheme ceasing to apply, and the first Swan Valley Planning Scheme beginning to apply instead, under the Swan Valley Planning Act 2020 section 9; and

(b) a reference to the making of a subsequent Swan Valley Planning Scheme or the amendment of the Swan Valley Planning Scheme.

84. Section 196 amended

(1) In section 196(1) and (2) delete “scheme” (each occurrence) and insert:

scheme, Swan Valley Planning Scheme

(2) In section 196(4) after “region planning scheme” insert:

or the Swan Valley Planning Scheme

85. Section 197 amended

(1) In section 197(1):

(a) delete “scheme or” (1st occurrence) and insert:

scheme, the Swan Valley Planning Scheme or an

(b) delete “scheme or” (2nd occurrence) and insert:

scheme, Swan Valley Planning Scheme or

(2) In section 197(2) delete “scheme or” and insert:

scheme, Swan Valley Planning Scheme or

86. Section 198 amended

In section 198(1) delete “Scheme” and insert:

Scheme, the Swan Valley Planning Scheme

87. Section 199 amended

(1) In section 199(1):

(a) delete “effect to the Metropolitan Region Scheme” and insert:

effect to the Metropolitan Region Scheme, the Swan Valley Planning Scheme

(b) in paragraph (b)(i) after “Scheme,” (1st occurrence) insert:

the Swan Valley Planning Scheme,

Swan Valley Planning Scheme,

(d) in paragraph (b)(ii) delete “Scheme” and insert:

Scheme, Swan Valley Planning Scheme

(2) In section 199(2) delete “2011 or the Hope Valley‑Wattleup Redevelopment Act 2000.” and insert:

	*2011*, the *Hope Valley‑Wattleup Redevelopment Act 2000* or the *Swan Valley Planning Act 2020*.

88. Section 217 amended

After section 217(5) insert:

(6) If the assessed scheme to which this section applies is the Swan Valley Planning Scheme or an amendment to that scheme, a reference in this section to the Minister is to be read as a reference to the Minister responsible for the administration of the Swan Valley Planning Act 2020.

89. Section 218 amended

In section 218(b) delete “scheme or improvement scheme” and insert:

scheme, an improvement scheme or the Swan Valley Planning Scheme

90. Section 241 amended

In section 241(1):

(a) in paragraph (b) delete “application.” and insert:

application; and

(b) after paragraph (b) insert:

(c) in the case of an application that relates to the Swan Valley Planning Scheme — the objects set out in the Swan Valley Planning Act 2020 section 5.

91. Section 252 amended

In section 252(2) delete “scheme or an improvement scheme” and insert:

scheme, an improvement scheme or the Swan Valley Planning Scheme

92. Section 266 amended

(1) In section 266(1) in the definition of function delete “this Act;” and insert:

this Act or the Swan Valley Planning Act 2020;

(2) In section 266(1) in the definition of meeting delete “this Act;” and insert:

this Act or the Swan Valley Planning Act 2020;

(3) In section 266(1) in the definition of member paragraph (c) delete “Schedule 2;” and insert:

Schedule 2 or the Swan Valley Planning Act 2020 section 33;

(4) In section 266(5)(a) and (b) after “this Act” insert:

or the Swan Valley Planning Act 2020

Note: The heading to amended section 266 is to read:

Duties and liabilities of persons performing functions under this Act or Swan Valley Planning Act 2020

93. Section 269 amended

In section 269(1) in the definition of legal instrument delete paragraph (b)(iv) and insert:

(iv) the Swan Valley Planning Act 2020;

94. Schedule 2 clause 1 amended

(1) In Schedule 2 clause 1(1) delete “to 9,” and insert:

to 9 and the Swan Valley Planning Act 2020 section 33,

(2) In Schedule 2 clause 1(2) delete “Schedule,” and insert:

Schedule and the Swan Valley Planning Act 2020,

(3) In Schedule 2 clause 1(6) delete “section 16,” and insert:

section 16 or the Swan Valley Planning Act 2020 section 34,

95. Schedule 2 clause 2 amended

In Schedule 2 clause 2(1) delete “7(2)(h), (i) or 8(2)(d).” and insert:

7(2)(h) or (i) or 8(2)(d) or under the Swan Valley Planning Act 2020 section 33(2)(c).

Part 10 — Other Acts amended

Division 1 — Control of Vehicles (Off‑road Areas) Act 1978 amended

96. Act amended

This Division amends the Control of Vehicles (Off‑road Areas) Act 1978.

97. Section 16 amended

In section 16(5)(d) delete “2005.” and insert:

	*2005* or the Swan Valley Planning Scheme in force under the *Swan Valley Planning Act 2020*.

98. Section 47 amended

In section 47(1) delete “2005” and insert:

	*2005*, or the Swan Valley Planning Scheme has been or is made under the *Swan Valley Planning Act 2020*,

Division 2 — Electricity Corporations Act 2005 amended

99. Act amended

This Division amends the Electricity Corporations Act 2005.

100. Section 60 amended

In section 60(3):

(a) in paragraph (c) delete “scheme,” and insert:

scheme; or

(b) after paragraph (c) insert:

(d) the Swan Valley Planning Scheme,

as defined in section 4(1) of that Act

Division 3 — Environmental Protection Act 1986 amended

101. Act amended

This Division amends the Environmental Protection Act 1986.

102. Section 3 amended

(1) In section 3(1) in the definition of assessed scheme after paragraph (a) insert:

(aa) includes the first Swan Valley Planning Scheme submitted in accordance with the Swan Valley Planning Act 2020 section 44 and approved under section 25(2)(a) of that Act;

(2) In section 3(1) in the definition of final approval after paragraph (ab) insert:

(b) prepared under the Swan Valley Planning Act 2020, means an approval under section 25(2)(a) of that Act; or

(3) In section 3(1) in the definition of period of public review after paragraph (ab) insert:

(b) prepared under the Swan Valley Planning Act 2020, means the period of advertisement for public inspection that applies for the purposes of section 23 of that Act; or

(4) In section 3(1) in the definition of responsible authority after paragraph (a)(iii) insert:

(iv) prepared under the Swan Valley Planning Act 2020, means the Western Australian Planning Commission; or

(5) In section 3(1) in the definition of scheme after paragraph (c) insert:

(d) the Swan Valley Planning Scheme, as defined in the Swan Valley Planning Act 2020 section 3, or an amendment of that Scheme; or

(6) In section 3(1) in the definition of scheme Act after paragraph (c) insert:

(d) the Swan Valley Planning Act 2020;

103. Section 48AAA amended

In section 48AAA(1) in the definition of relevant scheme after “paragraph” insert:

(d),

104. Section 48C amended

In section 48C(7) in the definition of public review after paragraph (ab) insert:

(b) prepared under the Swan Valley Planning Act 2020, means the procedure referred to in sections 23 and 25(1) of that Act; or

Division 4 — Heritage Act 2018 amended

105. Act amended

This Division amends the Heritage Act 2018.

106. Section 85 amended

In section 85 in the definition of planning instrument:

(a) in paragraph (c) delete “2000.” and insert:

 *2000*; or

(b) after paragraph (c) insert:

(d) the Swan Valley Planning Scheme in force under the Swan Valley Planning Act 2020.

Division 5 — Jetties Act 1926 amended

107. Act amended

This Division amends the Jetties Act 1926.

108. Section 7 amended

In section 7(3) delete “section 70 or under the Metropolitan Region Scheme as that term is” and insert:

section 70, or under the Metropolitan Region Scheme or the Swan Valley Planning Scheme as those terms are

Division 6 — Land Tax Assessment Act 2002 amended

109. Act amended

This Division amends the Land Tax Assessment Act 2002.

110. Section 15 amended

In section 15(3)(b) delete “local planning scheme or an improvement scheme.” and insert:

local planning scheme, an improvement scheme or the Swan Valley Planning Scheme.

111. Glossary amended

In the Glossary clause 1 insert in alphabetical order:

Swan Valley Planning Scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

Division 7 — Local Government Act 1995 amended

112. Act amended

This Division amends the Local Government Act 1995.

113. Section 6.33 amended

In section 6.33(1)(a) delete “local planning scheme or improvement scheme in force under” and insert:

planning scheme as defined in

Division 8 — Marine and Harbours Act 1981 amended

114. Act amended

This Division amends the Marine and Harbours Act 1981.

115. Section 12 amended

In section 12(3) delete “2006 or under the Metropolitan Region Scheme as that term is” and insert:

	*2006*, or under the Metropolitan Region Scheme or the Swan Valley Planning Scheme as those terms are

Division 9 — Metropolitan Redevelopment Authority Act 2011 amended

116. Act amended

This Division amends the Metropolitan Redevelopment Authority Act 2011.

117. Section 3 amended

In section 3 insert in alphabetical order:

Swan Valley has the meaning given in the Swan Valley Planning Act 2020 section 3;

118. Section 30 amended

In section 30(1)(a) delete “region; and” and insert:

region (other than the Swan Valley); and

Division 10 — Planning and Development Amendment Act 2020 amended

119. Act amended

This Division amends the Planning and Development Amendment Act 2020.

120. Section 25 deleted

Delete section 25.

121. Section 30 deleted

Delete section 30.

Division 11 — Railway (METRONET) Act 2018 amended

122. Act amended

This Division amends the Railway (METRONET) Act 2018.

123. Section 5 amended

(1) In section 5 insert in alphabetical order:

Swan Valley Planning Scheme has the meaning given in the Swan Valley Planning Act 2020 section 3.

(2) In section 5 in the definition of railway land delete “railways.” and insert:

railways;

124. Section 6 amended

In section 6 delete “Scheme,” and insert:

Scheme or the Swan Valley Planning Scheme,

Division 12 — Sale of Land Act 1970 amended

125. Act amended

This Division amends the Sale of Land Act 1970.

126. Section 16 amended

In section 16 delete “local planning scheme or improvement scheme,” and insert:

planning scheme,

Division 13 — Soil and Land Conservation Act 1945 amended

127. Act amended

This Division amends the Soil and Land Conservation Act 1945.

128. Schedule amended

In the Schedule insert in alphabetical order:

*Swan Valley Planning Act 2020*

Division 14 — Strata Titles Act 1985 amended

129. Act amended

This Division amends the Strata Titles Act 1985.

130. Section 223A inserted

After section 223 insert:

223A. Application in Swan Valley

On and after the day on which the first Swan Valley Planning Scheme comes into operation under the Swan Valley Planning Act 2020, this Act applies in relation to land in the Swan Valley (as defined in section 3 of that Act) as if —

(a) a reference to a local planning scheme were a reference to the Swan Valley Planning Scheme; and

(b) a reference in sections 22 to 28 to a local government were a reference to the Planning Commission; and

(c) Schedule 2A clause 21W(3)(b) permitted a discharge of an easement referred to in that clause to be approved either by the Planning Commission or by the local government.

Division 15 — Swan and Canning Rivers Management Act 2006 amended

131. Act amended

This Division amends the Swan and Canning Rivers Management Act 2006.

132. Section 57 amended

After section 57(b) insert:

(ba) the Western Australian Planning Commission; and

133. Section 67 amended

(1) In section 67 delete the definitions of Swan Valley and Swan Valley Planning Committee.

(2) In section 67 insert in alphabetical order:

Swan Valley has the meaning given in the Swan Valley Planning Act 2020 section 3.

(3) In section 67 in the definition of development application paragraph (b) delete “government or redevelopment authority” and insert:

government, redevelopment authority or the Western Australian Planning Commission

134. Section 68 amended

In section 68(a) after “Region” insert:

Scheme or the Swan Valley Planning

135. Section 72 amended

(1) In section 72(1) delete “subsection (2).” and insert:

subsection (2) or (3).

(2) After section 72(2) insert:

(3) If a development is proposed to be carried out on land in the Swan Valley, an application for development approval must be made to the Western Australian Planning Commission.

(3) In section 72(4) delete “(1) or (2),” and insert:

(1), (2) or (3),

(4) Delete section 72(6) and insert:

(6) An application to which subsection (1), (2) or (3) applies must be sent to the CEO by the local government, redevelopment authority or Western Australian Planning Commission, as the case requires, within 7 days after it is made.

136. Section 73 amended

(1) In section 73(1)(d) delete “Swan Valley Planning Committee.” and insert:

Western Australian Planning Commission.

(2) In section 73(2) delete “and, where particulars are referred to the Swan Valley Planning Committee, that committee,”.

(3) In section 73(3)(b) delete “subsection and, where particulars were referred to the Swan Valley Planning Committee, by that Committee,” and insert:

subsection,

137. Section 74 amended

Delete section 74(4) and insert:

(4) The CEO must send a notice under subsection (2) to —

(a) in the case of a proposed development to be carried out on land in the Swan Valley — the Western Australian Planning Commission; or

(b) otherwise — each local government and redevelopment authority for which the proposed development appears to the CEO to be a relevant matter as that term is defined in section 73.

(4A) An entity sent a notice under subsection (4) must display a copy of the notice at its public office until the expiry of the period for making submissions under subsection (5).

138. Section 75 amended

In section 75(3)(a)(ii) delete “section 73(1) and where notice was given to the Swan Valley Planning Committee, that committee; and” and insert:

section 73(1); and

139. Section 76 amended

In section 76(2)(a)(iii) delete “section 75 and where notice was given to the Swan Valley Planning Committee, that committee;” and insert:

section 75;

140. Section 80 amended

(1) Delete section 80(2)(d) and insert:

(d) if a development is proposed to be carried out in the Swan Valley — the Swan Valley Planning Scheme in force under the Swan Valley Planning Act 2020.

(2) Delete section 80(5)(a)(iii).

141. Section 82 amended

In section 82(4)(a) delete “section 73(1) and, where notice was given to the Swan Valley Planning Committee, to that Committee; and” and insert:

section 73(1); and

142. Section 87 amended

In section 87(2)(a)(iii) delete “section 75 and where notice was given to the Swan Valley Planning Committee, that Committee; and” and insert:

section 75; and

Division 16 — Water Agencies (Powers) Act 1984 amended

143. Act amended

This Division amends the Water Agencies (Powers) Act 1984.

144. Section 38 amended

In section 38(1) after “2005,” insert:

or the Swan Valley Planning Scheme is in force under the Swan Valley Planning Act 2020,

Note: The heading to amended section 38 is to read:

Revocation or amendment of local laws and planning schemes

Division 17 — Water Services Act 2012 amended

145. Act amended

This Division amends the Water Services Act 2012.

146. Section 143 amended

In section 143(3)(c) delete “scheme (as” and insert:

scheme or the Swan Valley Planning Scheme (as those terms are

147. Section 151 amended

In section 151(2)(c) delete “scheme (as” and insert:

scheme or the Swan Valley Planning Scheme (as those terms are

Division 18 — Waterways Conservation Act 1976 amended

148. Act amended

This Division amends the Waterways Conservation Act 1976.

149. Section 36 amended

After section 36(1)(f)(iia) insert:

(iib) the Swan Valley Planning Scheme;

Schedule 1 — Indicative map of Swan Valley

[s. 4(2)]

C:\Users\lynchj\AppData\Local\Microsoft\Windows\INetCache\Content.Word\SwanValleyBill_Overall_Feb2020_A4P.JPG View image in the official source

Notes

This is a compilation of the Swan Valley Planning Act 2020 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Swan Valley Planning Act 2020	45 of 2020	9 Dec 2020	Pt. 1: 9 Dec 2020 (see s. 2(1)(a)); Act other than Pt. 1 and s. 53, 54 and 62: 1 Aug 2021 (see s. 2(1)(d)(i) and (e) and SL 2021/124 cl. 2); s. 55 and 103: 1 Aug 2023 (see s. 2(1)(c)(ii) and SL 2023/107 cl. 2); s. 53, 54 and 62 1 Mar 2024 (see s. 2(1)(b)(ii) and SL 2024/16 cl. 2)
Planning and Development Amendment Act 2023 Pt. 8 Div. 2	34 of 2023	11 Dec 2023	1 Jul 2024 (see s. 2(e) and SL 2024/98 cl. 2)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

applicable regulations 3

approved scheme or amendment 27(1)

assent day 2(1)

Commission 3

Department 3

development 3

EPA 3

first proposed scheme 44(1)

Heritage Council 3

Herne Hill townsite 3

improvement scheme 3

incorporated provisions 11(2)

land 3

local planning scheme 3

Metropolitan Region Scheme 3

Minister for Heritage 3

Minister for the Environment 3

non-rural development 13(1)

officer of the Commission 3

planning code 3

proposed scheme or amendment 14

public authority 3

relevant local planning scheme regulations 40(1)

relevant planning scheme 9(1), 43

reviewed decision 48(1)

review instructions 21(1)

scheme start day 9(1), 43

specified 49(1)

State planning policy 3

State Register of Heritage Places 3

Swan Valley 3, 4(1)

Swan Valley local government 3

Swan Valley planning areas 12(1)

Swan Valley Planning Scheme 3

Swan Valley rural land 3

Swan Valley Statutory Planning Committee 3

Swan Valley Strategic Leadership Group 3

transitional matter 49(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Swan Valley Planning Act 2020

Western Australia

Swan Valley Planning Act 2020

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 3
Swan Valley 5
Objects of Act 5
Act binds Crown 7

Part 2 — Swan Valley Planning Scheme

Division 1 — Nature and effect of scheme

Swan Valley Planning Scheme 8
Scheme has legislative effect 8
Effect of scheme for Planning and Development Act 2005 8

Division 2 — Contents of scheme

Contents of scheme 9
Scheme may incorporate provisions of other planning instruments 10
Planning areas and provisions about subdivision and minimum lot sizes 10
Provisions to ensure non‑rural development designed to minimise impacts from rural land uses 11

Division 3 — Making and amending scheme

Subdivision 1 — Preliminary

Term used: proposed scheme or amendment 12
First proposed scheme 12
Replacement or amendment of scheme 12

Subdivision 2 — Processes to be followed in preparing proposed scheme or amendment

Matters to which Commission must have regard 13
Consultation requirements 13
Referral to Heritage Council 14
Referral to EPA 14
Environmental review to be undertaken if required by EPA 15
Environmental review to be undertaken by land owner in some circumstances 17

Subdivision 3 — Advertising proposed scheme or amendment

Advertising proposed scheme or amendment 17
Commission’s duties if proposed scheme or amendment to be assessed under 18

The Act creates a distinctive planning regime; understanding its main legal concepts is essential for identifying how it changes rights, obligations and processes.

Swan Valley and scheme start day. Swan Valley is the defined geographic area delineated on the plan held by the Commission and certified by the Minister (s 4(1)). The Act also supplies an indicative map in Schedule 1 (s 4(2)). The scheme start day is the day the first Swan Valley Planning Scheme comes into operation; that day triggers the replacement of other planning schemes for land in the Swan Valley (s 9(1)-(2), s 43).

Swan Valley Planning Scheme. The instrument itself is a planning scheme prepared by the Commission, approved by the Minister and having legislative effect (s 7, s 8(1)). The scheme is subsidiary legislation made under this Act (s 8(2)), and must be consistent with the objects of the Act (s 10(1)). The scheme is capable of incorporating, with or without modification, provisions of a planning code, the Metropolitan Region Scheme, model provisions and deemed provisions (s 11). Where the scheme incorporates other provisions, those incorporated provisions operate as part of the scheme as in force from time to time subject to any modifications set out in the Swan Valley Planning Scheme (s 11(2)-(3)).

Planning areas, subdivision and minimum lot sizes. The scheme must divide the Swan Valley into planning areas and set planning objectives for the whole valley and each planning area (s 12(1)-(2)). For each planning area the scheme must either prohibit subdivision or prescribe a minimum lot size and prohibit subdivision into lots smaller than the prescribed minimum (s 12(3)). The scheme may also provide for zones and reserves (s 12(4)).

Non‑rural development design provisions. The scheme must include provisions to ensure that new non‑rural development of Swan Valley rural land is designed and located so as to minimise nuisance or other detrimental impacts from existing or future horticultural or viticultural uses (s 13(2)). The Act anticipates provisions such as setbacks and building positions as possible mechanisms (s 13(3)).

Objects and decision‑maker obligations. The Act’s objects are set out in s 5(1) and focus extensively on protecting agricultural productivity, rural character and heritage, privileging horticulture, viticulture, hobby farming and equestrian activities, constraining new residential development outside a specified townsite, preventing environmentally damaging land management and reducing nutrient levels in the Swan River (s 5(1)(a)-(j)). Decision‑makers exercising powers under this Act, and under the Planning and Development Act 2005 in relation to the Swan Valley Planning Scheme, must have regard to the objects (s 5(2)).

Environmental and heritage review pathways. The Commission must refer proposed schemes or amendments to the EPA and to the Heritage Council in prescribed circumstances (ss 19-20). If the EPA requires an environmental review under the Environmental Protection Act 1986, the Commission must undertake that review, unless the owner was the requestor and is required to undertake the review (s 21, s 22). The Commission may recover the expenses incurred in undertaking such an environmental review in accordance with applicable regulations (s 21(6)).

Bodies created and their roles. The Swan Valley Strategic Leadership Group is a ministerially appointed advisory body (s 28). Its functions are strategic: information, promotion, commentary on proposed schemes and instruments, and support to public authorities and the community (s 29). It is explicitly precluded from commenting on particular development or subdivision applications (s 29(2)). The Swan Valley Statutory Planning Committee is a committee of the Commission, consisting of members appointed by the Commission with Ministerial approval, including members of the Commission’s Statutory Planning Committee, a representative of the Swan Valley local government and two persons representing local residents and businesses (s 33). The Commission must delegate certain functions to the Committee, including functions as responsible authority for the scheme and functions under the Swan and Canning Rivers Management Act 2006 Parts 4 and 5 (s 34(3)).

Delegation and subdelegation. The Commission may delegate functions to the Swan Valley Statutory Planning Committee (s 34), and the Committee may subdelegate those functions to a range of persons or bodies including officers of the Commission, public authorities, the Swan Valley local government, employees of the Swan Valley local government or committees (s 35). Delegations and subdelegations must be published on a website (s 36(1A), (1C)). The Commission must not delegate certain functions to another person or body under section 16(1) of the Planning and Development Act 2005 (s 34(4)).

Replacement of existing planning schemes and statutory relationships. From the scheme start day the Swan Valley Planning Scheme replaces the Metropolitan Region Scheme and the local planning scheme for land in the Swan Valley (s 9(2)). The Act contains detailed consequential amendments to the Planning and Development Act 2005 and many other Acts so that the Swan Valley Planning Scheme is integrated into the State planning framework (Pt 9 and Pt 10). A State planning policy that applies to land in the Swan Valley will have no effect to the extent it is inconsistent with the Swan Valley Planning Scheme on and after the scheme start day (s 131A(2)). The Minister may give notice to amend other planning schemes and State planning policies to be consistent with the Swan Valley Planning Scheme (s 131A(1)-(3)).

Transitional and saving provisions. The Act protects existing lawful or approved development by excluding section 9(2) and the new scheme from applying to developments lawfully being carried out immediately before the scheme start day, and preserves approvals in force immediately before that day (s 46). Pending applications and State Administrative Tribunal reviews in progress at the scheme start day are to be treated as made under, and decided in accordance with, the Swan Valley Planning Scheme (ss 47-48). Compensation for injurious affection arising from the first Swan Valley Planning Scheme is limited where the relevant provisions already existed in the prior scheme (s 175(2)).

These core concepts define who regulates what, the legal status of the new scheme, the obligations for environmental and heritage consideration, the institutional architecture for decision making, and the transitional protections or reassignments that apply when the first Swan Valley Planning Scheme comes into force.

The Act concentrates regulatory authority for land use and development in the Swan Valley with the Western Australian Planning Commission and the new Swan Valley Statutory Planning Committee and establishes an advisory Strategic Leadership Group. The principal categories of affected parties are set out below with references to the statutory provisions that create the effects.

Landowners and developers in the Swan Valley. All owners of land within the area defined as the Swan Valley (s 4(1)) are affected. On the scheme start day, existing Metropolitan Region Scheme, local planning scheme or improvement scheme controls cease to apply to land in the Swan Valley and the Swan Valley Planning Scheme becomes the relevant planning instrument (s 9(2)). Owners seeking subdivision, development approvals, or to rely on existing approvals must navigate the Swan Valley Planning Scheme and the Commission as responsible authority (s 9(2); s 34(3)(b)). Existing lawful developments and approvals in force immediately before the scheme start day are preserved (s 46), but applications not finalised or tribunal reviews pending are carried over and decided under the Swan Valley Planning Scheme (ss 47-48).

Swan Valley rural land users. The Act’s objects prioritise horticulture, viticulture, hobby farming and equestrian activities as the principal land uses in the Swan Valley and require the Commission and decision makers to have regard to those objects (s 5(1)(c), s 5(2)). The scheme must require non‑rural development of Swan Valley rural land to be designed and located to minimise detrimental impacts from horticulture and viticulture (s 13). Those requirements affect how tourism, hospitality, residential or other non‑rural developments are permitted and designed.

Local government. The local government that includes the Swan Valley is named the Swan Valley local government (s 3). The Act shifts many operational approvals away from local government for the Swan Valley. For example, a new development application for land in the Swan Valley must be made to the Commission (as amended into the Swan and Canning Rivers Management Act 2006: s 72(3) as inserted by Pt 10 Div 15) and applications that were to be determined by a Development Assessment Panel under regulations will be decided by the Commission on and after the scheme start day (s 47(3)). The Swan Valley Statutory Planning Committee includes a representative of the Swan Valley local government (s 33(2)(c)), and subdelegation to the local government or its employees is permitted (s 35(2)(e)-(g)), but the Commission is reconstituted as the central responsible authority for the valley.

The Western Australian Planning Commission. The Commission prepares the Swan Valley Planning Scheme, administers the plan once operative and must delegate certain functions to the Swan Valley Statutory Planning Committee while retaining ultimate responsibility (s 7, s 34). The Commission must consult the Strategic Leadership Group and the Swan Valley local government when preparing a proposed scheme (s 18). The Commission must refer proposed schemes to the EPA and the Heritage Council and comply with any environmental review instructions (ss 19-21). The Commission may recover environmental review expenses under applicable regulations (s 21(6)).

Heritage and environmental regulators. The Heritage Council must be given the proposed scheme for advice where the land affected is in the State Register of Heritage Places or a local heritage survey, and the Commission must not proceed without the Minister’s consent unless Heritage Council advice has been received (s 19(2)-(3)). The EPA must be given the proposed scheme and associated information for its functions under the Environmental Protection Act 1986 (s 20). If the EPA directs an environmental review, the Commission (or, in certain circumstances, the landowner) must undertake it and report to the EPA (ss 21-22).

Tourism, hospitality and agricultural businesses. The Act’s objects and scheme content require tourism and hospitality to be consistent with agricultural and rural objectives (s 5(1)(e)). Businesses in tourism, hospitality, agritourism, vineyards, horticulture and equestrian sectors will be directly affected by design controls for non‑rural development on rural land and by the scheme’s planning areas and subdivision minima (s 12-13). The Strategic Leadership Group’s functions include promotion and marketing of horticulture, viticulture, tourism and hospitality (s 29(1)(a)(ii)), which may affect public policy support and coordination.

Potential litigants and review applicants. The Act reassigns decision pathways. Applications that would have been decided by a DAP under regulations are to be decided by the Commission on and after the scheme start day (s 47(3)). State Administrative Tribunal reviews pending at the scheme start day are to be treated as reviews of decisions under the Swan Valley Planning Scheme and determined under that scheme (s 48). The Act also contains a provision limiting compensation for injurious affection for the first Swan Valley Planning Scheme to circumstances where the provisions were not already in the prior relevant planning scheme (s 175(2)), which affects owners who might otherwise seek compensation.

Other State agencies and public authorities. The Act requires the Commission to make reasonable endeavours to consult public authorities that appear to have an interest in a proposed scheme (s 18(1)(c)). The Swan Valley Strategic Leadership Group may make use of staff and facilities of public authorities by arrangement (s 31). Several other Acts are amended so that references to planning schemes include the Swan Valley Planning Scheme and responsible authority definitions include the Commission where relevant (Pt 9 and Pt 10 amendments).

Persons who requested a proposed scheme. Where a proposed scheme was prepared at the request of an owner and the EPA requires an environmental review, the Commission may require the owner to undertake the environmental review if the owner wishes the proposal to proceed (s 22(2)-(3)). This provision shifts potential cost and procedural burden to private landowners in certain circumstances.

The Crown and State agencies. The Act binds the Crown (s 6) and amends references in other written laws to include the Swan Valley Planning Scheme (s 39), so the Act’s controls displace other statutory planning frameworks for public authorities that have land or functions in the Swan Valley.

In short, decision‑making authority centralises with the Commission and its Swan Valley Committee, statutory duties and scheme content privilege agricultural uses and rural character, and owners of Swan Valley land, developers, heritage and environmental agencies, local government and businesses in tourism, hospitality and agriculture are the principal affected parties. The Act reallocates procedural and cost burdens in some circumstances, notably environmental review expenses and the possibility that owners who request schemes may be asked to bear review work (ss 21(6), 22).

This Act sets out both procedural duties for public authorities and substantive constraints that will inform land use rights in the Swan Valley. The following distils the principal duties, constraints and rights that arise directly from the Act.

Duty to prepare, approve and operate the scheme. The Commission must prepare the Swan Valley Planning Scheme and submit it to the Minister for approval in accordance with Part 2 (s 7(1), s 25). The Commission must prepare the first proposed scheme as soon as practicable after s 15 comes into operation (s 15). The Minister may approve, require modifications or refuse a proposed scheme (s 25(2)); the Minister must not approve a proposal unless satisfied that it is consistent with the objects of the Act (s 25(3)).

Objects as decision‑making benchmark. Persons exercising powers under this Act, and under the Planning and Development Act 2005 in relation to the Swan Valley Planning Scheme, must have regard to the objects of the Act (s 5(2)). The objects establish a statutory decision‑making benchmark that includes protection of agricultural productivity, rural character, heritage conservation, limiting new residential development outside the Herne Hill townsite, avoiding environmental degradation and ensuring non‑rural development is compatible with horticulture and viticulture (s 5(1)). The scheme itself must be consistent with those objects (s 10(1)).

Consultation and referral duties. Before submitting a proposed scheme or amendment, the Commission must consult the Strategic Leadership Group and the Swan Valley local government and make reasonable endeavours to consult public authorities and persons with an interest (s 18). The Commission must refer a proposed scheme or amendment to the Heritage Council when heritage matters arise and must not proceed without the Minister’s consent until Heritage Council advice has been received (s 19(2)-(3)). The Commission must refer a proposed scheme or amendment to the EPA and supply necessary information to enable the EPA to comply with the Environmental Protection Act 1986 requirements (s 20).

Environmental review duties and cost recovery. If the EPA requires an environmental review under the Environmental Protection Act 1986, the Commission must undertake the environmental review in accordance with the EPA’s instructions before advertising the proposal (s 21(2)-(3)). The Commission may recover the expenses incurred in carrying out the environmental review under applicable regulations (s 21(6)). If the proposed scheme was prepared at the request of an owner, the Commission may require that owner to undertake the environmental review and provide it to the Commission (s 22(2)-(3)). These provisions assign procedural duties and potential financial liability for environmental assessments.

Advertising, submissions and Ministerial notification. After EPA and Heritage steps are completed, the Commission must advertise the proposed scheme for public inspection and consider public submissions in accordance with applicable regulations (s 23). If the EPA indicates the proposed scheme should be assessed under Part IV Division 3 of the Environmental Protection Act 1986, the Commission must provide to the EPA copies of submissions that raise environmental issues and provide the EPA with the Commission’s views and response within 42 days (s 24).

Delegation and publication duties. The Commission must delegate certain functions to the Swan Valley Statutory Planning Committee (s 34(3)). Delegations and subdelegations must be published on a website maintained by or on behalf of the Commission or the Committee (s 36(1A), (1C)). A person exercising a delegated power is taken to do so in accordance with the terms of the delegation unless the contrary is shown (s 36(2)).

Duty not to conflict with scheme when giving approvals. On and after the scheme start day, the Commission must have regard to the provisions of the Swan Valley Planning Scheme and must not give an approval that conflicts with the scheme, except in circumstances permitted by regulations (s 138A(3)-(4)), as inserted into the Planning and Development Act 2005 by Pt 9.

Preservation of existing lawful development and limited compensation. A development lawfully being carried out immediately before the scheme start day is not subject to s 9(2) and may be lawfully carried out as if the new scheme were not in operation (s 46(1)-(2)). The Act restricts liability for compensation for injurious affection by providing that no compensation is payable for injurious affection arising from the making of the first Swan Valley Planning Scheme to the extent the relevant provisions were already contained in a prior relevant planning scheme (s 175(2)).

Rights to participate in process. Members of the public and interested parties may make submissions during advertisement of a proposed scheme or amendment and those submissions must be considered by the Commission (s 23). If the EPA assesses a proposal under the Environmental Protection Act, submissions that raise environmental issues must be forwarded to the EPA and the Commission must respond (s 24). These are procedural rights to be heard in the scheme‑making process.

Protections from litigation. The Act provides protection from tort liability for persons acting in good faith in the performance or purported performance of functions under the Act (s 38(1)), though the protection does not relieve the Commission, the State or a local government of any liability it might have for another person’s actions (s 38(3)). The Act also ensures the Crown is bound (s 6) so that obligations apply to State agencies.

Regulatory tools and penalties in regulations. The Governor may make regulations covering many procedural and substantive matters (s 41). Regulations may provide for fees and cost recovery (s 41(2)(c), s 21(6)), prescribe offences and penalties not exceeding $50,000 (s 41(2)(g)), and make the detailed process for scheme form, content and interaction with other planning instruments (s 41(2)(e)).

Obligation to review the Act’s operation. The Minister must review the operation and effectiveness of the Act and table reports in Parliament at five‑year intervals (s 42). The review must specifically examine the effectiveness of the Group, the Committee and the Swan Valley Planning Scheme (s 42(2)(a)).

Those duties and rights reallocate procedural burdens (environmental review costs, consultation duties), centralise approval and scheme drafting functions with the Commission and its Committee, and embed statutory objects that favour agricultural and rural land uses as the substantive benchmark for decision making (s 5, s 10). The Act therefore transforms both who decides and the legally required criteria for their decisions.

The Act itself contains limited express penalty provisions and relies in substance on delegated regulations and other environmental and planning regimes for enforcement and offence sanctions. The principal enforcement‑related provisions in the Act and their operational consequences are set out below.

Regulations may create offences and set penalties. The Governor may make regulations for matters required or convenient to give effect to the Act (s 41(1)). Those regulations may provide for offences and prescribe penalties not exceeding a fine of $50,000 (s 41(2)(g)). The Act therefore anticipates that specific compliance offences, procedural penalties or fees may be established by regulation rather than within the primary Act.

Environmental and heritage statutory pathways. The Act embeds the Environmental Protection Act 1986 and the Heritage Act 2018 processes into the scheme‑making pathway. Proposed schemes or amendments must be referred to the EPA with necessary information for the EPA to meet its duties under s 48A of the Environmental Protection Act 1986 (s 20). If the EPA requires an environmental review under the Environmental Protection Act 1986, the Commission (or where applicable the landowner) must undertake the review and report to the EPA before advertising a proposed scheme or amendment (s 21). The EPA’s statutory decisions and any approvals or conditions it imposes when assessing schemes are enforceable under the Environmental Protection Act framework, including any associated penalties under that Act. The Act also requires referral to the Heritage Council where the land is in the State Register or otherwise within the Heritage Act review process (s 19). Enforcement of heritage protection obligations will therefore proceed through the Heritage Act regime.

Commission’s obligation not to approve schemes inconsistent with EPA decisions. The Minister may not approve a proposed scheme or amendment that has been referred to the EPA unless the EPA has informed the Minister that it does not consider the proposal should be assessed under Part IV Division 3, or unless conditions identified by the EPA have been incorporated into the proposed scheme or there has been a decision under s 48J of the Environmental Protection Act 1986 (s 26(2)(a)-(c)). This places an effective enforcement lever in the EPA’s control during scheme approval.

Obligations and recoverable costs for environmental review. If the EPA issues review instructions, the Commission must undertake, or cause to be undertaken, the environmental review in accordance with those instructions before advertising (s 21(2)-(3)). The Commission may recover expenses incurred in undertaking that review in accordance with applicable regulations (s 21(6)). And where the proposed scheme was prepared at an owner’s request, the Commission may require the owner to undertake the environmental review (s 22(2)-(3)). These provisions create a pathway for cost recovery and assign financial exposure for environmental assessment to the Commission or, in prescribed circumstances, to private owners.

Protection from tort liability. Section 38 provides that an action in tort does not lie against a person for anything done in good faith in the performance or purported performance of a function under this Act. The protection covers omissions (s 38(4)) and extends to acts that could have been done whether or not the Act existed (s 38(2)). The protection is subject to a carve out: the Commission, the State or a local government is not relieved of any liability it might have for another person having done the act (s 38(3)). This limits personal civil liability for public servants and others acting in good faith under the Act while preserving possible governmental liability.

Limits on compensation. The Act limits compensation for injurious affection caused by the making of the first Swan Valley Planning Scheme. Where the relevant provisions were already contained in the prior relevant planning scheme, no compensation is payable for injurious affection attributable to the first Swan Valley Planning Scheme (s 175(2)). That provision narrows an owner’s compensation remedy in specific transitional circumstances.

Delegation and publication obligations as transparency and accountability mechanisms. The Act requires publication of Commission delegations and Committee subdelegations on a website (s 36(1A), (1C)). Publication does not invalidate a delegation if omitted, but the requirement introduces transparency that assists public awareness of who is exercising decision‑making power.

Enforcement of development approvals and planning controls. Once the Swan Valley Planning Scheme is in place, enforcement of development approvals, conditions and any regulatory offences will primarily rely on the Planning and Development Act 2005 provisions as amended to reflect the Swan Valley Planning Scheme (Pt 9 amendments). The Act inserts s 138A into the Planning and Development Act 2005 which requires the Commission to have regard to the scheme and not give approvals that conflict with it, except in specified regulatory circumstances (s 138A(3)-(4)). The practical enforcement mechanisms for breaches of controls are therefore those contained in the Planning and Development Act 2005 and other Acts that have been amended to take account of the new Swan Valley Planning Scheme (see Pt 9 amendments).

No express criminal sanctions in primary text. Apart from the regulation‑making power to create offences up to a $50,000 penalty (s 41(2)(g)), the Act contains no catalogue of criminal offences or penalty unit schedules in the primary text. Enforcement is therefore heavily dependent on regulations to be made under the Act, and on existing enforcement regimes in the Environmental Protection Act 1986, Heritage Act 2018 and the Planning and Development Act 2005 (as amended).

In practice this architecture places emphasis on delegated regulation and on the EPA and Heritage Act mechanisms for substantive environmental and heritage enforcement. It also channels decision‑making through published delegations and Commission processes, and restricts certain civil remedies (compensation) in defined transitional scenarios.

The Act expressly alters the relationship between the Swan Valley Planning Scheme and other planning instruments and amends a wide range of other written laws so that the new scheme is integrated within the State’s statutory framework. The interactional rules are both direct (replacement of prior schemes) and consequential (amendments to definitions, functions and referral pathways across multiple Acts). The following enumerates the principal interactions the Act creates or changes, with statutory references.

Replacement of existing planning schemes. Section 9(2) provides that, on and from the scheme start day, each relevant planning scheme (the Metropolitan Region Scheme, the local planning scheme that applied to Swan Valley land immediately before the scheme start day, and any improvement scheme that applied) ceases to apply to Swan Valley land and any development of that land that commenced on or after that day. The Planning and Development Act 2005 continues to apply but the Swan Valley Planning Scheme becomes the applicable planning scheme (s 9(2)). The Act thus displaces existing planning instruments for the geographic area defined in s 4(1).

Treating the Swan Valley Planning Scheme as a planning scheme within the broader planning Acts. The Act amends the Planning and Development Act 2005 to treat the Swan Valley Planning Scheme as a type of planning scheme (Pt 9, eg s 57-59 amendments). Definitions of planning scheme and responsible authority in the Planning and Development Act 2005 are amended so that the Swan Valley Planning Scheme is included and the Commission is included in responsible authority contexts (s 57). Numerous other amendments integrate the Swan Valley Planning Scheme into rules about consistency between local and region planning schemes, restrictions on prescribed development applications, subdivision approvals, and the Commission’s functions (Pt 9: specific amendments include insertion of s 131A, s 138A and amendments to sections 71, 112, 119, 122B, 123, 131 and others).

State planning policies. Section 131A(2) states that, from the day the first Swan Valley Planning Scheme comes into operation, any State planning policy that applies to land in the Swan Valley has no effect to the extent that it is inconsistent with the Swan Valley Planning Scheme. The Minister may amend a State planning policy by Gazette notice so that it is consistent with the Swan Valley Planning Scheme (s 131A(3)). This produces a hierarchy where the localised statute‑backed Swan Valley instrument can displace State planning policy within the Swan Valley.

Environmental Protection Act 1986 interactions. The scheme‑making pathway must comply with EPA referral and assessment provisions. Section 20 requires the Commission to refer proposed schemes or amendments to the EPA and to provide necessary information for the EPA to comply with its obligations under s 48A of the Environmental Protection Act 1986. Section 21 details the process where the EPA requires an environmental review under that Act and makes the Commission responsible for complying with EPA review instructions. The Act amends definitions in the Environmental Protection Act 1986 to include the Swan Valley Planning Scheme as a possible ‘assessed scheme’ and adjusts definitions of final approval, period of public review and responsible authority to recognise the Swan Valley Planning Scheme (Pt 10 Div 3, ss 101-104).

Heritage Act 2018 interactions. The Commission must refer proposed schemes that affect registered heritage places or local heritage survey places to the Heritage Council for advice (s 19). The Heritage Act 2018 is amended to include the Swan Valley Planning Scheme within the definition of planning instrument for heritage purposes (Pt 10 Div 4, s 106), so heritage considerations in the Heritage Act operate in the Swan Valley context.

Swan and Canning Rivers Management Act 2006 interactions. The Act amends provisions in the Swan and Canning Rivers Management Act 2006 to ensure the Commission is included in relevant referral and decision pathways (Pt 10 Div 15, ss 131-141). It inserts an obligation that development proposed on Swan Valley land requires an application to the Commission (s 72(3) as inserted), changes notice and referral pathways (s 74), and updates references to the Swan Valley Planning Scheme in sections across the Act. The purpose is to ensure river management referrals and considerations fit within the Swan Valley planning framework.

Other Acts and definitions. The Act amends many other Acts to integrate the Swan Valley Planning Scheme, including the Strata Titles Act 1985 (inserting s 223A applying that Act in the Swan Valley as if the Swan Valley Planning Scheme were a local planning scheme: Pt 10 Div 14, ss 129-130), Land Tax Assessment Act 2002, Jetties Act 1926, Local Government Act 1995, Water Agencies (Powers) Act 1984, Water Services Act 2012, Waterways Conservation Act 1976 and others (Pt 10 Divisions 1-18). These amendments typically add the Swan Valley Planning Scheme into definitions of planning scheme, responsible authority, or referral pathways so statutory functions and powers in those Acts operate in the Swan Valley context.

Delegation and administrative law interactions. The Commission must delegate defined powers to the Swan Valley Statutory Planning Committee and may subdelegate those powers to a broad set of recipients, including the Swan Valley local government and its employees (s 35). Publication requirements for delegations are included (s 36(1A), (1C)). The Act also modifies the Planning and Development Act 2005 to prevent certain delegations and to require the Commission to have regard to the Swan Valley Planning Scheme when granting approvals (inserted s 138A). These changes interact with administrative law principles by reassigning decision‑maker identity and by embedding mandatory statutory criteria (s 5) that decision‑makers must consider.

Transitional rights and compensation under existing laws. The Interpretation Act 1984 and the Planning and Development Act transitional provisions are applied by the Act in particular ways (s 45). The Act preserves lawful developments that were under way before the scheme start day (s 46), transfers pending applications and SAT reviews to the new scheme regime (ss 47-48), and limits compensation for injurious affection where the relevant provisions already existed in the previous planning scheme (s 175(2)). These clauses alter the application and potential remedies available under pre‑existing legislation.

Effect on State planning instruments. The Act allows the Minister to publish Gazette notices to amend region and local planning schemes or State planning policies to maintain consistency with the Swan Valley Planning Scheme (s 131A(1)-(3)). The amendments have immediate effect on publication. This mechanism provides an administrative shortcut to align other instruments with the Swan Valley Planning Scheme without following the full statutory amendment processes in those instruments.

Overall, the Act does two broad things in relation to other laws: (1) it replaces prior planning instruments for the Swan Valley with a statutory, scheme‑level instrument that is deemed to have legislative effect under the Act, and (2) it threads that instrument into existing statutory frameworks by amending definitions, referral pathways and responsibilities across a wide set of Acts so that the Swan Valley Planning Scheme operates as the primary planning instrument for the valley and is able to displace inconsistent State planning policy for Swan Valley land.

The text supplied includes the Act as enacted and records amendments and commencement information. The principal legislative milestones and commencement sequencing are recorded in the Act and the compilation table and are summarised below with references to the relevant sections.

Assent and staged commencement. The Swan Valley Planning Act 2020 received Royal Assent on 9 December 2020 (compilation table). Part 1 came into operation on assent day (s 2(1)(a)). The remainder of the Act was scheduled to come into operation on a day fixed by proclamation (s 2(1)(e)). The compilation table records that most of the Act came into operation on 1 August 2021 (SL 2021/124 cl. 2), with sections 55 and 103 commencing on 1 August 2023 (SL 2023/107 cl. 2), and sections 53, 54 and 62 commencing on 1 March 2024 (SL 2024/16 cl. 2). The Planning and Development Amendment Act 2023 Part 8 Division 2 commenced on 1 July 2024 (SL 2024/98 cl. 2), and other specific commencement sequencing is addressed within s 2.

Conditional deletion provision. Section 2(2) provides that if specified provisions of the Planning and Development Amendment Act 2020 come into operation before proclamation under s 2(1)(e), then sections 66 and 67 and Part 10 Division 10 of this Act do not come into operation and are deleted on the day fixed under s 2(1)(e). There is therefore a contingent deletion mechanism linked to the timing of commencement of provisions in an amending Act.

Sunset clause. Section 2(3) contains a repeal trigger: if no day is fixed under s 2(1)(e) within 10 years of assent day, this Act is repealed on the day after that period ends. This creates a statutory sunset if the necessary proclamation does not occur within ten years.

Amendments to the Act itself. Part 8 of the Act sets out amendments to this Act that commence on the later of proclamation and commencement of specified provisions of the Planning and Development Amendment Act 2020. Those amendments insert new defined terms (planning code) into s 3 and make consequential changes to s 11 and s 20 concerning incorporation of planning code provisions and EPA referral exemptions (ss 52-55). The compilation table notes the Planning and Development Amendment Act 2023 Pt 8 Div 2 (No. 34 of 2023) commenced on 1 July 2024.

Comprehensive consequential amendments across the statute book. Part 9 contains a large program of amendments to the Planning and Development Act 2005 to include the Swan Valley Planning Scheme within definitions and operational provisions (ss 56-95). These amendments include deletion of specific sections, insertion of s 131A (relationship between Swan Valley Planning Scheme and other planning schemes or policies) and s 138A (Commission’s functions when approving subdivision etc. in Swan Valley), and many cross‑references to ensure the new scheme is treated as a planning scheme across the P&D Act. The Act also amends many other Acts in Part 10 by inserting references to the Swan Valley Planning Scheme, adjusting referral provisions, and ensuring administrative alignment.

Repeal of earlier Swan Valley Act and Regulations. Part 7 repeals the Swan Valley Planning Act 1995 and the Swan Valley Planning Regulations 1995 (ss 50-51). Those repeals signal replacement of the prior regional regime with the 2020 Act as the statutory framework for planning in the Swan Valley.

Transitional provisions. Part 6 sets out transitional measures for the first Swan Valley Planning Scheme, including a different process for preparing the first proposed scheme (s 44), preservation of existing lawful development (s 46), treatment of pending applications and tribunal reviews (ss 47-48), and provision for transitional regulations to address matters not sufficiently covered by the Act (s 49). The Act thus embeds transitional amendment mechanisms.

Review requirements. Section 42 mandates statutory review of the Act’s operation as soon as practicable after the 5th anniversary of the date s 42 comes into operation, and then at intervals of not more than five years. The Minister must lay the review report before Parliament (s 42). This creates a statutory obligation to revisit the Act and report on the effectiveness of the Group, Committee and the scheme.

Compilation updates. The version provided includes notes showing amendments and the compilation table with dates of assent and commencement. The Act text bears marginal notes showing insertion and amendment dates (for example s 3 amended by No. 45 of 2020 s 53; No. 34 of 2023 s 53) confirming that the Act has been amended since enactment.

In sum, the Act was enacted in 2020 with staged commencements through 2021, 2023 and 2024 for particular provisions and contains both forward‑looking amendment clauses and transitional mechanics to ensure its integration with the Planning and Development Act 2005 and other statutes. The statutory review mechanism (s 42) creates a mandatory checkpoint for evaluating the Act’s effectiveness and the operation of the new institutional architecture.

The Act text supplied contains no judicial decisions or tribunal determinations. The compilation and the sections of the Act do not refer to case law, and the Act does not list litigation or appeal outcomes. Therefore, there is no litigation history contained within the statutory text to report. The following observations are drawn directly from the Act’s procedural and review mechanisms and indicate where disputes or reviews could arise under the statutory framework.

State Administrative Tribunal reviews and pending applications. The Act provides that applications to the State Administrative Tribunal under the Planning and Development Act 2005 Part 14 that are made but not finally decided on the scheme start day become reviews of decisions under the Swan Valley Planning Scheme and the Tribunal’s decision is to be made in accordance with that scheme rather than the prior relevant planning scheme (s 48). This reassignment of the statutory framework for pending reviews could generate litigation about the proper application of the new scheme to particular facts, but the Act itself does not cite case law or provide precedent.

Delegations, subdelegations and publication. The Act requires delegations by the Commission to the Swan Valley Statutory Planning Committee to be published on a website (s 36(1A)). Delegations and subdelegations may produce administrative law challenges where parties challenge exercise of delegated powers for jurisdictional error, failure to observe required regard to the objects (s 5(2)), or failure to comply with published terms. The Act does not itself provide an appeal mechanism specific to Swan Valley decisions beyond those in the Planning and Development Act 2005, now amended for Swan Valley applications (Pt 9 amendments).

Ministerial finality in specific environmental review determinations. The Act provides that if the EPA advises the Commission that a review has not been undertaken in accordance with the EPA’s review instructions, the Commission may request the Minister to consult the Minister for the Environment and, if they agree on whether the review has been undertaken in accordance with the instructions, their decision is final and without appeal or review (s 21(4)-(5)(a)). If the Ministers cannot agree, s 48J of the Environmental Protection Act 1986 applies. The Act therefore embeds a limited form of ministerial finality in one procedural pathway. Any legal challenge to such ministerial decisions would need to be framed against the constitutional and administrative law doctrines relevant in Western Australia; the Act itself states that agreement is final and without appeal or review in the statutorily specified circumstances.

Compensation and injurious affection. Section 175(2) limits entitlement to compensation for injurious affection when the first Swan Valley Planning Scheme includes provisions already contained in prior relevant planning schemes. This statutory limitation could be the subject of claims as to whether a particular provision was previously in a relevant planning scheme and whether compensation is payable. The Act does not resolve those disputes but creates the statutory test.

Absence of reported cases in the Act. Because the Act contains no cases and the provided text contains no litigation record, there is no statutory litigation history to cite. Practitioners should expect litigation and tribunal challenges may follow operation of the new scheme, as they typically do in planning reform contexts, but any such litigation lies outside the statutory text and is not recorded here.

In short, the Act itself contains procedural transfer and review provisions that will be the locus of future disputes, but the statute as provided contains no litigation history or judicial interpretation to report. Practitioners should monitor tribunal and court decisions after the scheme start day for the developing body of litigation applying the new Swan Valley Planning Scheme and the amended Planning and Development Act 2005.

The Act contains several provisions and structural features that produce practical and legal risks or traps for practitioners, landowners, local government and developers. These are not evaluations but concrete points where statutory design creates tension, surprises or potential implementation issues that parties must recognise.

Centralisation of approvals with the Commission. The Act transfers decision‑making authority for land in the Swan Valley from the local frameworks to the Commission and its Swan Valley Statutory Planning Committee. A development application proposed to be carried out on Swan Valley land must be made to the Commission (as reflected in amendments to the Swan and Canning Rivers Management Act 2006, s 72(3)) and applications that would have been determined by a DAP under prior regulations may be decided by the Commission after the scheme start day (s 47(3)). This reallocation affects application routing, expectations of local political input and timing. Local governments lose primary approval authority for many matters, although subdelegation to local government employees is possible under s 35(2).

Objects‑driven decision standard and restricted residential development. The scheme and decision‑makers must have regard to statutory objects that prioritise agricultural uses and rural character and that seek to prevent new residential development in the valley except for single houses outside the Herne Hill townsite (s 5(1)(c), (f) and s 5(2)). Applicants seeking residential subdivision or higher‑density tourist accommodation should be aware that the statutory objects materially constrain permissible outcomes and the Minister must be satisfied that proposed schemes are consistent with those objects before approval (s 25(3)).

Scheme has legislative effect but limited Interpretation Act application. The Swan Valley Planning Scheme is subsidiary legislation made under this Act (s 8(2)), but s 8(3) expressly states that Interpretation Act 1984 s 41 does not apply to the scheme or an amendment. Practitioners should check what s 41 of the Interpretation Act provides in full; here the Act itself signals that a customary Interpretation Act provision will not apply. The immediate interpretative consequence is that some standard interpretive or procedural presumptions found in the Interpretation Act may not operate for the Swan Valley Planning Scheme.

Environmental review cost allocation and owner liability. If the EPA requires an environmental review of a proposed scheme, the Commission must undertake it and may recover the expenses under applicable regulations (s 21(6)). If the proposed scheme was prepared at the request of an owner, the Commission may require the owner to undertake the environmental review (s 22(2)-(3)). Owners who initiate proposals that require EPA review may therefore face direct costs for environmental assessment, depending on regulations.

Heritage Council referral prevents proceeding without consent. Where the proposed scheme affects land entered in the State Register of Heritage Places, or subject to a Heritage Act review or local heritage survey, the Commission must refer the proposal to the Heritage Council and must not proceed without the Minister’s consent until Heritage Council advice has been received (s 19(2)-(3)). This imposes an absolute stop in the process until heritage advice is in play, which can delay scheme progression.

Regulations can authorise approvals that conflict with the scheme. Section 138A(4) (inserted into the Planning and Development Act 2005 by Pt 9) permits the Commission to give a Swan Valley approval that conflicts with the provisions of the Swan Valley Planning Scheme in circumstances set out in the regulations. That is a legislated exception to the general duty not to give approvals that conflict with the scheme (s 138A(3)). The content of those regulations will be consequential; absent examination of the regulations, the existence of a regulatory exception is a point of uncertainty.

Limits on compensation for first scheme. Section 175(2) provides that when land is alleged to be injuriously affected by the making of the first Swan Valley Planning Scheme, no compensation is payable to the extent that the relevant provisions were also contained in a prior relevant planning scheme. Owners who expect compensation for the first scheme should carefully assess whether the impugned provisions were already present in earlier schemes.

Delegation and subdelegation breadth. The Swan Valley Statutory Planning Committee may subdelegate powers to a wide range of entities, including the Swan Valley local government and its employees (s 35(2)(e)-(g)). Subdelegations cannot themselves be subdelegated (s 35(3)). The Commission and Committee must publish delegations and subdelegations on a website (s 36(1A), (1C)), but a failure to publish does not invalidate the delegation. Practitioners should confirm who will be the actual decision‑maker by checking delegation instruments, not merely relying on statutory role descriptions.

Protection from tort actions for good faith acts. Section 38 provides that actions in tort do not lie against a person for things done in good faith in performance of functions under the Act. While this protects public officers and others, the Commission, State and local governments are not relieved of liability they might have for another person’s act (s 38(3)). This limited immunity may affect risk allocation and insurance considerations.

State planning policy displacement. Section 131A(2) provides that a State planning policy that applies to land in the Swan Valley has no effect to the extent it is inconsistent with the Swan Valley Planning Scheme from the scheme start day. Practitioners should therefore check the scheme carefully as it will take precedence over inconsistent State planning policy in the Swan Valley.

Transitional treatment of pending applications and reviews. Applications made but not decided on the scheme start day are taken to be made under the Swan Valley Planning Scheme and must be decided under that scheme (s 47). Similarly, Tribunal reviews pending at the scheme start day are to be decided in accordance with the Swan Valley Planning Scheme (s 48). Parties with applications or reviews in progress should plan for the new substantive framework to apply.

Regulation dependence for key details. Many procedural and cost allocation mechanisms are to be set out in regulations (s 41). The Act therefore leaves substantial detail to subordinate instruments, including fees, forms, matters for which the scheme may provide and offences. This reliance creates an implementation risk until the regulations are published and practitioners must monitor for their content.

Taken together, these “gotchas” are concrete features of the statutory architecture that change who decides, where costs fall, what substantive tests apply, which instruments prevail and how process unfolds in the Swan Valley. Parties should identify these provisions in the Act and track implementing regulations and delegation instruments.

Compliance under the Swan Valley Planning Act 2020 requires aligning activities with the Act’s objects, engaging required referral and consultation bodies, meeting environmental and heritage review obligations, following the Commission’s scheme‑making and approval processes, and checking delegated decision‑maker status. The following step‑by‑step guidance synthesises the statutory obligations and practical actions an applicant, landowner, local government or adviser should take, referencing the Act.

Confirm whether the land is in the Swan Valley.
- Check the certified plan held by the Commission and the indicative map in Schedule 1 to confirm the land lies in the statutory Swan Valley (s 4(1)-(2)). The scheme start day and many obligations turn on that geographic determination (s 9(1)).
Review the Act’s objects and ensure project proposals are consistent.
- The scheme must be consistent with the Act’s objects and decision makers must have regard to those objects (s 10(1), s 5(2)). Review s 5(1) carefully: priority is given to protecting agricultural productivity, rural character and heritage, ensuring horticulture, viticulture, hobby farming and equestrian activities remain principal land uses, discouraging incompatible uses, and limiting new residential development outside Herne Hill (s 5(1)(a)-(f)).
Determine the applicable planning instrument.
- After the first Swan Valley Planning Scheme begins operation, it will be the operative planning instrument for Swan Valley land (s 9(2)). Until the first scheme is published, transitional rules apply (Part 6, s 44). For in‑flight applications and tribunal reviews, understand whether they will be transferred to the Swan Valley Planning Scheme (ss 47-48).
Engage with the Strategic Leadership Group and Swan Valley local government in scheme preparation or consultation phases.
- The Commission must consult the Strategic Leadership Group and the Swan Valley local government and make reasonable endeavours to consult other public authorities and persons with an interest when preparing a proposed scheme or amendment (s 18). Although the Group is precluded from commenting on particular applications (s 29(2)), it is a statutory body the Commission must consult in scheme preparation (s 18(1)(a)).
Anticipate heritage and environmental referrals and reviews.
- If the proposal affects registered heritage places or places subject to local heritage surveys or reviews, the Commission must refer the proposed scheme to the Heritage Council and may not proceed without receiving the Council’s advice unless the Minister consents (s 19(2)-(3)). The Commission must refer proposed schemes to the EPA and provide necessary information for the EPA’s statutory processes (s 20). If the EPA requires an environmental review the Commission must ensure the review is undertaken in accordance with the EPA’s instructions before advertising (s 21(2), (3)). If the proposal was prepared at an owner’s request, the Commission may require the owner to undertake the environmental review (s 22).
Budget for possible environmental review costs and fees.
- The Commission may recover expenses for environmental reviews in accordance with applicable regulations (s 21(6)). Regulations may also provide for fees and charges (s 41(2)(c)) and the Commission may impose fees under regulations that are applicable to local planning schemes where relevant (s 40(4)). Applicants and owners should budget for these possible costs.
Prepare submissions and make use of public consultation.
- After EPA and Heritage steps are completed, the Commission must advertise a proposed scheme or amendment and consider public submissions according to applicable regulations (s 23). If the EPA is assessing the proposal, the Commission must provide submissions that raise environmental issues to the EPA and respond within 42 days (s 24). Prepare submissions that address the statutory objects (s 5) and the planning objectives for the relevant Swan Valley planning area once draft provisions are available (s 12).
For owners who requested a proposed scheme, be prepared to undertake required environmental review work.
- If the Commission is required to conduct an EPA‑directed environmental review for a proposed scheme that was requested by an owner, the Commission may require that owner to undertake the review if the owner wishes the proposal to proceed (s 22(2)-(3)). Owners should plan for this contingent obligation.
Confirm the decision‑maker and delegation status for development assessment.
- Determine whether the Swan Valley Statutory Planning Committee or the Commission will exercise decision‑making power and whether any functions have been subdelegated to local government officers (s 34-35). Check the published delegations and subdelegations on the Commission’s and Committee’s websites (s 36(1A), (1C)). Do not assume local government remains the responsible authority for approvals; the Act centralises many approvals with the Commission (s 34(3), s 47(3)).
Ensure design of non‑rural development is shaped to minimise impacts from rural land uses.
- The scheme must include provisions to ensure non‑rural development on Swan Valley rural land is designed and located to minimise nuisance or detrimental impacts from horticulture and viticulture (s 13(2)). Anticipate controls such as setbacks and building siting requirements (s 13(3)) and design proposals accordingly.
Check for restrictions on prescribed development applications and DAPs.
- Section 171A(2A) provides that a development application relating to land in the Swan Valley cannot be a prescribed development application. Applications that were to be determined by a DAP before the scheme start day are to be decided by the Commission after that day (s 47(3)). Confirm how this affects your application’s pathway and timing.
Review compensation exposure and transitional protections.
- If you claim injurious affection arising from the first Swan Valley Planning Scheme, check whether the impugned provisions were already in the prior relevant planning scheme; s 175(2) excludes compensation where the provisions were already contained in the prior scheme. Also, lawful existing development and approvals in force immediately before the scheme start day remain governed by the prior relevant planning schemes (s 46).
Monitor for regulations and delegation instruments.
- Many operational details are to be prescribed by regulation, including forms, fees, offences and the manner of public advertisement (s 41). The Commission’s power to recover environmental review costs is subject to applicable regulations (s 21(6)). The regulations will supply the detailed administrative mechanics and any exceptions to standard duties (for example, the circumstances in which the Commission may grant approvals that conflict with the scheme under s 138A(4) are to be prescribed in regulations). Until regulations are published, some compliance questions remain open.
Prepare for Ministerial approval and publication steps.
- After the Commission submits the proposed scheme, the Minister may approve, require modifications or refuse (s 25). If approved, the Commission must publish the approved scheme or amendment in the Gazette, advertise it and make copies available to the public (s 27). Implementation of the scheme occurs from the date of Gazette publication or the later date specified in the approved scheme (s 27(2)).
Use the statutory review mechanism if necessary.
- The Minister must review the Act’s operation and prepare reports at five‑year intervals addressing the operation of the Group, the Committee and the scheme (s 42). Stakeholders with concerns about the scheme’s operation should use submissions during the scheme‑making process and engage with the review process when it occurs to influence reform.

Practical checklist for applicants/owners before lodging proposals or pursuing development: confirm Swan Valley boundary (s 4), map the applicable planning area and minimum lot size potential (s 12), align proposals with s 5 objects, anticipate EPA and Heritage referral (ss 20-21, 19), budget for environmental review costs and potential owner obligations (s 21(6), s 22), determine the responsible decision‑maker and check published delegations (s 34-36), and track regulations for fees, forms and any regulatory exceptions (s 41).

Following these steps will align proponents’ activities with the Act’s procedural chain and substantive priorities and reduce the risk of cost surprises, misdirected applications or procedural non‑compliance when the Swan Valley Planning Scheme is prepared and begins to operate.

Deep Dive

What it does

Current sections